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, 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 WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

________________________________

BRIEF OF AMICUS CURIAE THE ISLAM & RELIGIOUS

FREEDOM ACTION TEAM OF THE RELIGIOUS

FREEDOM INSTITUTE IN SUPPORT OF PETITIONERS

________________________________

ERICA N. PETERSON

KELLY R. OELTJENBRUNS

MATTHEW J. REVIS

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue,

NW, Suite 900

Washington, D.C. 20037

(202) 955-1500

ELBERT LIN

Counsel of Record

HUNTON ANDREWS KURTH LLP

951 East Byrd Street, East

Tower

Richmond, Virginia 23219

elin@HuntonAK.com

(804) 788-8200

September 29, 2020

Counsel for Amicus 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 right.

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS .....................................................ii

INTRODUCTION ................................................................ 1

INTEREST OF AMICUS CURIAE..................................... 2

SUMMARY OF ARGUMENT ............................................. 3

ARGUMENT........................................................................ 4

I.

II.

Redress for Constitutional Deprivations

Should Not Depend on Whether the Harm

Suffered Is Quantifiable.............................................. 4

A.

Constitutional violations are not always

quantifiable. ........................................................ 4

B.

Minority faiths frequently experience

unquantifiable burdens on religious

exercise in the zoning and prison

contexts. ............................................................... 8

C.

The ability to vindicate a constitutional

deprivation should not depend upon

whether the harm suffered is

quantifiable. ...................................................... 13

History and this Court’s Precedent Compel the

Rule That a Claim for Nominal Damages Can

Preserve a Case Seeking to Vindicate

Constitutional Rights. ............................................... 16

CONCLUSION .................................................................. 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ashby v. White,

92 Eng. Rep. 126 (1702) ..........................................................17

Baca v. Colo. Dep’t of State,

935 F.3d 887 (10th Cir. 2019) .................................................16

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics,

403 U.S. 388 (1971) .................................................................18

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................................10

Carey v. Piphus,

435 U.S. 247 (1978) ...........................................................14, 16

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) .................................................................19

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................................19

DeFunis v. Odegaard,

416 U.S. 312 (1974) .................................................................15

Entick v. Carrington,

2 Wils. K. B. 275, 95 Eng. Rep. 807 (1765) ............................17

iv

Farrar v. Hobby,

506 U.S. 103 (1992) ...........................................................16, 17

Flanigan’s Enters. v. City of Sandy Springs,

868 F.3d 1248 (11th Cir. 2017) .........................................14, 15

Greene v. Cole,

2 WMS Saunders 252, 85 Eng. Rep. 1037

(1670) .......................................................................................18

Holt v. Hobbs,

135 S. Ct. 853 (2015) ...............................................................10

Husain v. Springer,

494 F.3d 108 (2d Cir. 2007).......................................................5

Imbler v. Pachtman,

424 U.S. 409 (1976) .................................................................20

Kuperman v. Wrenn,

645 F.3d 69 (1st Cir. 2011) ......................................................10

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) .................................................................14

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)...................................................18

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986) .............................................................7, 16

Morgan v. Plano Indep. Sch. Dist.,

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

v

Mosier v. Alexander,

No. CIV-05-1068-R, 2006 WL 3228703 (W.D.

Okla. Nov. 7, 2006)..................................................................11

Murphy v. Hunt,

455 U.S. 478 (1982) .................................................................14

New York Rifle & Pistol Ass’n v. City of N.Y.,

140 S. Ct. 1525 (2020) .......................................................15, 16

Oliver v. Scott,

276 F.3d 736 (5th Cir. 2002) ...................................................15

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) .................................................................19

Robinson v. Lord Byron,

2 Cox 5, 30 Eng. Rep. 3 (1788) ...............................................18

Sossamon v. Texas,

563 U.S. 277 (2011) .................................................................12

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) .................................................17, 19, 20

Sutton v. Cleveland Bd. of Educ.,

958 F.2d 1339 (6th Cir. 1992) .................................................16

Taylor v. Villanueva,

No. 2:19-cv-04398 (C.D. Cal. Aug. 26, 2019) ........................11

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) .................................................................19

vi

Utah Animal Rights Coal. v. Salt Lake City Corp.,

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

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc.,

454 U.S. 464 (1982) .................................................................19

Webb v. Portland Mfg. Co.,

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

Me. 1838) .................................................................................18

Statutes

42 U.S.C. § 1983 ..............................................................4, 7, 16, 20

42 U.S.C. § 1997e(e)......................................................................13

Restatement (First) of Torts § 569 (1938) .....................................20

Restatement (First) of Torts § 570 (1938) .....................................20

Restatement (First) of Torts § 907 .................................................20

Other Authorities

1 Francis Hilliard, The Law of Torts or Private Wrongs

85, 87 (2d ed. 1861) ..................................................... 19

Anemona Hartocollis, Why This Iowa Campus Is

Erasing Political Chalk Talk, NY TIMES (Jan.

31, 2020), https://www.nytimes.com/2020/

01/30/us/iowa-caucus-chalking.html .........................................5

vii

Associated Press, Sikh student sues US army over

rules that ‘violate his religious beliefs’, THE

GUARDIAN (Nov. 14, 2014), https://bit.ly/3kn

5Vgc. ........................................................................................12

C. G. Addison, Wrongs and Their Remedies:

Being a Treatise on the Law of Torts 1-2

(2d ed. 1864) .........................................................................19

Charles Toutant, Vineland Mosque Can Proceed

With Religious Bias Claim Against City, Judge

Rules, NEW JERSEY LAW JOURNAL (Dec. 13,

2018),

https://www.law.com/njlawjournal/2018/12/13/

vineland-mosque-can-proceed-with-religiousbias-claim-against-city-judge-rules/ ..........................................9

Emma Green, A New Jersey Mosque Wins in a

Religious-Discrimination Lawsuit—Over

Parking Lots, THE ATLANTIC (May 30, 2017),

https://www.theatlantic.com/politics/archive/20

17/05/bernards-township-mosque-casesettled/528492/ ...........................................................................9

Eric Stirgus, Georgia Tech settles lawsuit with prolife student group, THE ATLANTA JOURNALCONSTITUTION (Sept. 10, 2020) .................................................6

F. Andrew Hessick, Standing, Injury in Fact, and

Private Rights, 93 CORNELL L. REV. 275, 284

(2008) .......................................................................................18

viii

Heather L. Weaver, ACLU Client Makes History

As First Air Force JAG Corps Officer to Wear

Hijab, American Civil Liberties Union (May 16,

2018), https://www.aclu.org/blog/religiousliberty/free-exercise-religion/aclu-client-makeshistory-first-air-force-jag-corps ...............................................12

Jimmie E. Gates, He wasn’t smoking weed, just

talking about it. Now, college is facing suit over

free speech, MISSISSIPPI CLARION LEDGER

(Sept. 4, 2019), https://

www.clarionledger.com/story/news/politics/201

9/09/04/free-speech-former-student-sues-jonescollege-ms-free-speech-violated-poll-on-potlegalization/216 5016001/ ..........................................................5

Joseph Ax, Trump’s Justice Department backs

Orthodox Jews in zoning battle, REUTERS (June

15, 2018), https://www.reuters.com/article/usajustice-sessions-religion/trumps-justicedepartment-backs-orthodox-jews-in-zoningbattle-idUK L1N1TH0GM ........................................................9

Maureen Downey, Lawsuit: Anti-abortion group at

Georgia Tech denied funding to host MLK

niece, THE ATLANTA JOURNAL-CONSTITUTION

(Apr. 1, 2020), https://www.ajc.com/news/edu

cation/lawsuit-anti-abortion-group-georgia-techdenied-funding-host-mlkniece/XJQUtPrY4JDqqE0IzYmVbJ/ .........................................6

ix

Morgan R. Keller, ACLU-DE Protects Students’

Rights to Religious Freedom (January 9, 2018),

https://www.aclu-de.org/en/news/aclu-deprotects-students-rights-religious-freedom ................................6

Xerxes Wilson, Women sue Delaware over

workplace hijab prohibition; federal lawsuit

claims discrimination, USA TODAY (Aug. 14,

2020) ........................................................................................12

1

INTRODUCTION

Chike Uzuegbunam and Joseph Bradford’s experience

of being prevented from carrying out their faith is one

shared by people from a wide variety of religions and

backgrounds. So too is what happened when they tried to

vindicate their constitutional rights in court: the

government reversed course. Of course, Chike and Joseph

wanted their public college to change its ways, but they

wanted something else too—for a court to recognize that

their constitutional rights had been violated. But the

Eleventh Circuit decided that after the school withdrew its

policy, Chike and Joseph’s claims no longer mattered since

they did not suffer quantifiable financial harm beyond the

injury of having their rights infringed.

That is wrong. Our constitutional freedoms are

priceless, and the government should not be able to violate

them without consequence simply by changing its ways

before litigation concludes. And there are many stories of

governmental discrimination like Chike and Joseph’s.

They involve the freedom of religion, freedom of speech,

due process, and the right to bear arms, to name a few. The

ability to vindicate these constitutional rights is

fundamental to a society built on the rule of law.

Consistent with history, precedent, and the

overwhelming majority of lower courts, this Court should

now make clear that a post-filing change in policy does not

moot a nominal-damages claim for a past, completed

violation of constitutional rights. Doing so will ensure that

the courthouse doors are uniformly open to vindicate these

2

priceless constitutional freedoms, whether or not those

harmed by discrimination have also suffered quantifiable

financial injury.

INTEREST OF AMICUS CURIAE1

The Religious Freedom Institute’s Islam and Religious

Freedom Action Team (“IRF”) amplifies Muslim voices on

religious freedom, seeks a deeper understanding of the

support for religious freedom inside the teachings of Islam,

and protects the religious freedom of Muslims. IRF engages

in research, education, and advocacy on core issues like

freedom of religion, and the freedom to live out one’s faith,

including in the workplace and at school. IRF explores and

supports religious freedom by translating resources by

Muslims about religious freedom, fostering inclusion of

Muslims in religious freedom work both in places where

Muslims are a majority and where they are a minority, and

partnering with the Institute’s other teams in advocacy.

IRF has significant interest here as an organization

that seeks to protect and foster religious freedom. IRF is

concerned that, if this Court adopts the rule of the court

below, plaintiffs who allege violations of their

constitutional rights to free speech and free exercise of

religion will be stopped from vindicating those rights, as

1 All parties have filed blanket consents to the filing of amicus curiae

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

any party. A party or a party’s counsel did not contribute money that

was intended to fund preparing or submitting this brief. No person,

other than amicus curiae, its members, or its counsel, contributed

money that was intended to fund preparing or submitting this brief.

3

those violations often cause only non-tangible—but very

real—harm. IRF is also concerned, as an organization that

seeks to foster the inclusion of Muslims in religious

freedom work, that a rule like that adopted by the lower

court will disproportionately affect members of minority

faiths. IRF offers its perspective on the far-reaching

consequences of a rule that prevents adjudication of certain

constitutional violations and urges this Court to ensure all

Americans have an equal ability to vindicate their

constitutional rights.

SUMMARY OF ARGUMENT

Constitutional violations do not always cause

quantifiable financial harm. No calculable injury occurs

when the government stops someone from speaking on

matters of personal significance or forces him to violate his

religious beliefs. But the harm caused is real, even if it

cannot be quantified. Thus, this Court has said that

nominal damages are the appropriate remedy for such

incalculable injuries.

By holding that a claim for nominal damages alone is

never enough to sustain a case seeking to remediate

constitutional deprivations, the Eleventh Circuit’s decision

ignores these harms and the role that nominal damages

play in vindicating them. As Petitioners’ show, this is a

problem in the public school context. But it is also a

problem for members of minority faiths in other contexts

as well, including with respect to zoning and prison

regulations. The ability of individuals to vindicate their

constitutional rights should not depend upon whether in

4

addition to having his rights violated, the plaintiffs also

suffered quantifiable harm.

History and this Court’s precedent support overturning

the decision below. As the Petition explains, this Court has

already recognized that nominal damages, standing alone,

are a meaningful remedy for constitutional violations. The

historical understanding of a “case or controversy” is

consistent with this understanding of nominal damages, as

does this Court’s standing jurisprudence and Congress’s

intent in enacting section 1983 to provide a cause of action

for constitutional violations. It follows straightforwardly

from these principles that, contrary to the Eleventh

Circuit’s conclusion, a claim alleging a constitutional

violation does not become moot merely because it seeks

only nominal damages.

ARGUMENT

I. Redress for Constitutional Deprivations Should

Not Depend on Whether the Harm Suffered Is

Quantifiable.

A. Constitutional violations are not always

quantifiable.

Infringement of constitutional rights results in real

harm even if such harm is unquantifiable. As relevant to

Petitioners, in the context of public schools that harm often

takes the form of prohibitions on speaking about social,

political, or religious topics. For example, students have

been prevented from distributing religious materials,

including pencils inscribed with religious messages and

5

candy canes with cards explaining the religious origin of

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

743 (5th Cir. 2009). In another case, a school restricted the

ability of a student newspaper to endorse candidates for

student government. Husain v. Springer, 494 F.3d 108,

115–118 (2d Cir. 2007).

There are new examples seemingly every day. Earlier

this year, the New York Times reported that Iowa State

University banned a well-established tradition of students

writing political messages in sidewalk chalk on the

campus. The school limited “chalking” to recognized

student groups and only to advertising including: “the

group’s name, a title for the event (up to seven words), a

place and a time.” Any message that does not comply is

washed away.2

Last fall, Michael Brown, a student at Jones College in

Mississippi, filed a suit alleging that he had been

prevented from talking about politics on campus. One day

he held up a sign designed to poll his fellow students on the

legalization of marijuana. The campus police chief took

Brown to his office and told him that according to campus

policy, Brown needed to request administrative approval

and wait a minimum of three days before holding any

gathering on campus.3

2 Anemona Hartocollis, Why This Iowa Campus Is Erasing Political

Chalk Talk, NY TIMES (Jan. 31, 2020), https://www.nytimes.com/2020/

01/30/us/iowa-caucus-chalking.html.

3 Jimmie E. Gates, He wasn’t smoking weed, just talking about it. Now,

college is facing suit over free speech, MISSISSIPPI CLARION LEDGER

(Sept. 4, 2019), https:// www.clarionledger.com/story/news/politics/201

6

A few years ago, a tenth-grade student was suspended

from his Delaware public high school for wearing a kufi4 to

school. The school threated future punitive action if the

student returned to school wearing a kufi without a letter

of approval from a Muslim leader.5

In September 2019, at Georgia Tech, the university’s

policies allowed the student government to effectively block

a student group—Students for Life—from bringing Alveda

King, Dr. Martin Luther King, Jr.’s niece, to campus to

speak about her experience in the civil rights movement.

Because the university had no policy requiring viewpointneutral distribution of funds for student speakers, the

student government was able to block funding for the

speech on grounds that the speech would be “inherently

religious.”6

9/09/04/free-speech-former-student-sues-jones-college-ms-free-speechviolated-poll-on-pot-legalization/216 5016001/.

4 A kufi is a short, rounded cap worn for religious purposes by some

Muslim men and boys.

5 Morgan R. Keller, ACLU-DE Protects Students’ Rights to Religious

Freedom, ACLU-DE.org (January 9, 2018), https://www.aclu-de.org/en/

news/aclu-de-protects-students-rights-religious-freedom.

6 The parties agreed to settle the case but only after Georgia Tech

revised its policies. Maureen Downey, Lawsuit: Anti-abortion group at

Georgia Tech denied funding to host MLK niece, THE ATLANTA

JOURNAL-CONSTITUTION (Apr. 1, 2020), https://www.ajc.com/news/edu

cation/lawsuit-anti-abortion-group-georgia-tech-denied-funding-hostmlk-niece/XJQUtPrY4JDqqE0IzYmVbJ/; Eric Stirgus, Georgia Tech

settles lawsuit with pro-life student group, THE ATLANTA JOURNALCONSTITUTION (Sept. 10, 2020), https://www.ajc.com/education/georgia

-tech-settles-lawsuit-with-pro-life-student-group/JORF7UDQXZCW5

PFJAWQBNRC23M/.

7

As this Court has recognized, the rights to speak freely

and practice one’s religion have enormous value to

individuals and to society. But like other constitutional

rights, its deprivation, standing alone, cannot be measured

in simple economic terms. In Memphis Cmty. Sch. Dist. v.

Stachura, jurors were asked to do just that: to put money

value on a teacher’s right to free speech based on “the

particular right’s ‘importance . . . in our system of

government,’ its role in American history, and its

‘significance . . . in the context of the activities’ in which

[the plaintiff’] was engaged.” 477 U.S. 299, 308 (1986). This

Court found such an approach unworkable and

impermissible, holding that “the abstract value of a

constitutional right may not form the basis for § 1983

damages.” Ibid.

Instead, nominal damages “are the appropriate means

of ‘vindicating’ rights whose deprivation has not caused

actual, provable injury.” Stachura, 477 U.S. at 308 n.11. It

is impossible to place “some undefinable ‘value’ [on]

infringed rights.” Ibid. But “[b]y making the deprivation of

such rights actionable for nominal damages without proof

of actual injury, the law [is able to] recognize[] the

importance to organized society that those rights be

scrupulously observed.” Ibid.

8

B. Minority faiths frequently experience

unquantifiable burdens on religious exercise

in the zoning and prison contexts.

Of course, schools are not the only context in which the

harm from government action can result in unquantifiable

financial injury; the same can be said about local zoning

board decisions or prison regulations, circumstances where

members of minority faiths see a disproportionate amount

of government discrimination. In a 2016 report on the

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), the Department of Justice observed that

“minority groups have faced a disproportionate level of

discrimination in zoning matters.” U.S. Dep’t of Justice,

Update on the Justice Department’s Enforcement of the

Religious Land Use and Institutionalized Persons Act:

2010–2016, 4 (July 2016). Likewise, “RLUIPA claims in

institutional settings are most often raised by people who

practice minority faiths.” Id. at 11. RLUIPA claims do not

necessarily rise to the level of a constitutional violation, but

the numbers clearly suggest a greater burden on the

religious freedoms of minority faiths when it comes to

zoning and prison practices. The statistics are stark: Jews,

Muslims, Buddhists, and Hindus made up 4.2% of the U.S.

population in 2015 but represented over 55% of DOJ

investigations opened between 2010 and 2016 under

RLUIPA. Id. at 5–6.

As in schools, the harm in these contexts can be

intangible. There is injury from the mere fact that the

government has prevented the exercise or living of one’s

faith. Whether or not there is calculable financial injury to

9

support a claim for compensatory damages, the harm is

very real.

In the zoning context, the harm often arises from the

denial of permission to build or expand a place of worship.

Although the costs of preparing a zoning application or

securing land that one can no longer use may be

quantifiable, the intangible burden on the exercise of one’s

faith is itself also an injury. That was the experience of the

Garden State Islamic Center in the city of Vineland, New

Jersey7; of Valley Chabad, an Orthodox Jewish

congregation in a New Jersey suburb of Manhattan8; and

of the Islamic Society of Basking Ridge in New Jersey.9 In

the last case, the Society faced substantial and overt antiMuslim bias in opposition to build a new mosque. In

rejecting the Society’s proposal, the local planning board

heard testimony that the Society’s members were a

“different kind of population instead of the normal JudeoChristian population” and anti-mosque fliers were

distributed at the meeting.

7 Charles Toutant, Vineland Mosque Can Proceed With Religious Bias

Claim Against City, Judge Rules, NEW JERSEY LAW JOURNAL (Dec. 13,

2018), https://www.law.com/njlawjournal/2018/12/13/vineland-mosque

-can-proceed-with-religious-bias-claim-against-city-judge-rules/.

8 Joseph Ax, Trump’s Justice Department backs Orthodox Jews in

zoning battle, REUTERS (June 15, 2018), https://www.reuters.com/articl

e/usa-justice-sessions-religion/trumps-justice-department-backs-ortho

dox-jews-in-zoning-battle-idUK L1N1TH0GM.

9 Emma Green, A New Jersey Mosque Wins in a ReligiousDiscrimination Lawsuit—Over Parking Lots, THE ATLANTIC (May 30,

2017), https://www.theatlantic.com/politics/archive/2017/05/bernardstownship-mosque-case-settled/528492/.

10

In prisons, the harm frequently comes from grooming

requirements. In Holt v. Hobbs, 135 S. Ct. 853 (2015), this

Court considered a prisoner’s challenge to the Arkansas

Department of Corrections grooming policy that prohibited

inmates from wearing “facial hair other than a neatly

trimmed mustache that does not extend beyond the corner

of the mouth or over the lip.” Holt v. Hobbs, 135 S. Ct. 853,

860 (2015). The Department’s policy made no exception for

religious objections. Ibid. Holt, a devout Muslim who

wanted to grow a 1/2-inch beard in accordance with his

religious beliefs, sued under RLUIPA. Id. at 861. By

requiring him to trim his beard, the Department’s policy

forced Holt to “engage in conduct that seriously violate[d]

[his] religious beliefs” or face “serious disciplinary action.”

Id. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 720 (2014)). Holt did not allege financial injury

but indisputably suffered harm from being forced to violate

his religious beliefs or face disciplinary action.

A similar prison policy prevented Albert Kuperman

from growing a beard—a practice important to his

Orthodox Jewish faith—while serving his sentence in a

New Hampshire state prison. Kuperman v. Wrenn, 645

F.3d 69, 71 (1st Cir. 2011). Like Holt, Kuperman did not

allege financial injury when he sued the prison officials,

seeking injunctive relief as well as nominal and punitive

damages. Id. at 73.

Others have suffered from the failure of prisons to

accommodate religious dietary practices. Three Muslim

men in a California jail claimed that jail officials denied

and often declined to consider inmate requests for halal

11

diets. Am. Compl. at 7–11, Taylor v. Villanueva, No. 2:19cv-04398 (C.D. Cal. Aug. 26, 2019). In accordance with

their religion, the inmates must refrain from eating pork

products and may eat only meat that is halal, that is,

prepared in accordance with Islamic law. Id. at 7 & n.1. In

some instances, the officials allegedly subjected Muslim

inmates to religious tests before approving them to receive

a halal diet. Id. at 12, 14–15. Even after being approved for

a halal diet, one inmate allegedly continued not to receive

halal meals and “los[t] weight” as a result of refusing to

violate his religious beliefs by consuming non-halal food.

Id. at 8.

John Mosier, an Orthodox Jewish inmate in Oklahoma,

was refused kosher meals while serving his sentence.

Mosier v. Alexander, No. CIV-05-1068-R, 2006 WL

3228703, at *4 (W.D. Okla. Nov. 7, 2006). Jail officials then

reversed course and provided kosher meals for six weeks

before transferring Mosier to a different facility. Ibid.

Mosier later filed suit, claiming a violation of his right to

free exercise of religion and seeking an injunction and

nominal damages. Id. at *5. Mosier was transferred again

before his claim could be fully litigated, mooting his claim

for injunctive relief. But the court concluded that his

nominal damages claim could continue. Ibid.

Similar examples arise in other contexts as well. Weeks

ago, three women sued Delaware for preventing them from

wear a hijab while working at a state-run detention

12

center.10 Until it changed its policy, the Air Force

prevented Lt. Maysaa Ouza from wearing her hijab during

basic training for the JAG Corps.11 A Sikh man won a

lawsuit against the military in 2015 for a similar policy

that prevented him from following Sikh grooming

traditions.12

These cases illustrate the types of real but intangible

harms suffered by religious minorities that, when resulting

from the violation of a constitutional right, should be

capable of vindication through nominal damages. This is

particularly important in prison cases for at least two

overlapping reasons. To begin with, this Court has limited

the relief available to prisoners under RLUIPA to nonmonetary remedies, making it easier for prisons to moot

RLUIPA claims by simply changing their practices or

transferring prisoners. Sossamon v. Texas, 563 U.S. 277,

280 (2011). A constitutional claim for money damages may

be the only way for a prisoner to vindicate his or her

religious freedoms. On top of that, the Prison Litigation

Reform Act (“PLRA”) provides that compensatory damages

are not available for emotional harm absent physical

Xerxes Wilson, Women sue Delaware over workplace hijab

prohibition; federal lawsuit claims discrimination, USA TODAY (Aug.

14, 2020), https://www.usatoday.com/story/news/nation/2020/08/14/ba

rred-wearing-hijabs-former-delaware-workers-sue-state/3373522001/.

11 Heather L. Weaver, ACLU Client Makes History As First Air Force

JAG Corps Officer to Wear Hijab, American Civil Liberties Union (May

16, 2018), https://www.aclu.org/blog/religious-liberty/free-exercisereligion/aclu-client-makes-history-first-air-force-jag-corps.

12 Associated Press, Sikh student sues US army over rules that 'violate

his religious beliefs', THE GUARDIAN (Nov. 14, 2014), https://bit.ly/3kn

5Vgc.

10

13

injury, 42 U.S.C. § 1997e(e), meaning that nominal

damages may often be the only money damages available.

C. The ability to vindicate a constitutional

deprivation should not depend upon whether

the harm suffered is quantifiable.

Only the Eleventh Circuit ignores the reality, as

established above, that sometimes there is not quantifiable

harm to support compensatory damages. It is the only

federal appellate court that has held a claim for nominal

damages alone is never enough to sustain a case seeking to

vindicate constitutional deprivation; the plaintiff must also

alleged compensatory damages. In contrast, six circuits

already recognize that a claim for nominal damages

preserves a case if the unconstitutional policy has been

changed or revoked. And two other circuits follow this rule

provided that the policy has actually been enforced against

the plaintiff. This Court should similarly hold that a

nominal damages claim alone is sufficient to prevent a

constitutional case from becoming moot.

The ability of individuals to vindicate their

constitutional rights should not depend upon whether in

addition to having his rights violated, the plaintiffs also

suffered quantifiable harm. For starters, the distinction

makes no sense. Under the Eleventh Circuit’s rule, a

student group barred from distributing purchased pencils

bearing a religious message could maintain its claim even

if the school changed course, but it could not if it had

merely sought to talk to fellow students about religion. A

student prevented from speaking on campus would be able

14

to maintain her suit after a policy change if she had paid to

rent event space but would not if the space had been

provided for free.

Such a rule also runs contrary to the societal interest in

deterring violations of constitutional rights and ensuring

compensation for past violations. It is important to

“organized society that [constitutional] rights be

scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 266

(1978). A rule mooting constitutional claims that lack all

but nominal damages undermines that interest by allowing

the government to violate constitutional rights with

impunity so long as it changes the offending conduct before

litigation concludes. Put bluntly, “the government gets one

free pass at violating your constitutional rights.”

Flanigan’s Enters. v. City of Sandy Springs, 868 F.3d 1248,

1275 (11th Cir. 2017) (en banc) (Wilson, J., dissenting).

The mootness exception for conduct capable of

repetition yet evading review does not provide an effective

workaround to the Eleventh Circuit’s roadblock. Courts

will sometimes allow an otherwise moot case to proceed if

“‘(1) the challenged action [is] in its duration too short to be

fully litigated prior to its cessation or expiration, and (2)

there [is] a reasonable expectation that the same

complaining party would be subject[] to the same action

again.’” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481

(1990) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

The exception may save some cases from mootness under

the Eleventh Circuit’s rule. But consider the education and

prison contexts, in which students graduate and prisoners

are transferred or released. These situations may not

15

satisfy the capable of repetition prong. See, e.g., DeFunis v.

Odegaard, 416 U.S. 312, 318–19 (1974) (concluding that a

student’s challenge to a law school admissions program

was not capable of repetition, yet evading review once the

student entered his third year and would not be subject to

the admissions process again); Oliver v. Scott, 276 F.3d

736, 741 (5th Cir. 2002) (concluding that a prisoner’s

transfer to a different prison defeated his argument that

his claim was capable of repetition yet evading review).

Further, this mootness exception is a prudential

doctrine that leaves to the court’s discretion difficult

determinations about the likely duration of litigation, the

likely duration of the plaintiff’s harm, and the likelihood

that harm will recur. A rule that nominal damages save a

constitutional claim from mootness will provide certainty

to litigants, is straightforward for courts to administer, and

recognizes the importance of vindicating constitutional

rights. “[T]he most workable option is a bright line rule

allowing nominal damages to save constitutional claims

from mootness.” Flanigan’s, 868 F.3d at 1271 (Wilson, J.,

dissenting).

Reversing the Eleventh Circuit will also ensure greater

percolation on other important issues that might one day

reach this Court. As this Court well knows, issues of

mootness often arise where government policies are in

question, and mid-litigation policy changes can jeopardize

the consideration of issues of national importance. See, e.g.,

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

1525, 1526–27 (2020) (per curiam) (vacating on mootness

grounds and remanding for consideration of whether

16

petitioners may add a claim for damages). And these issues

span a number of important areas of constitutional law.

See, e.g., New York Rifle & Pistol Ass’n v. City of N.Y., 140

S. Ct. 1525, 1526–27 (2020) (per curiam) (Second

Amendment); Carey v. Piphus, 435 U.S. 247 (1978)

(procedural due process); Baca v. Colo. Dep’t of State, 935

F.3d 887 (10th Cir. 2019) (voting rights); Utah Animal

Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248 (10th

Cir. 2004) (free speech); Sutton v. Cleveland Bd. of Educ.,

958 F.2d 1339 (6th Cir. 1992) (procedural due process). By

adopting the rule that nominal damages save

constitutional claims from mootness, this Court can ensure

the robust consideration of issues from which this Court so

often benefits.

II. History and this Court’s Precedent Compel the

Rule That a Claim for Nominal Damages Can

Preserve a Case Seeking to Vindicate

Constitutional Rights.

A bright-line rule that nominal damages save

constitutional claims from mootness follows both from

history and this Court’s precedent. As explained above and

in Petitioners’ brief, this Court has already recognized that

nominal damages, standing alone, are a meaningful

remedy for a constitutional violation. In Stachura, this

Court reaffirmed what it established in Carey, that

nominal damages are the appropriate remedy when a

plaintiff’s constitutional rights are violated but she suffers

no monetary loss. 477 U.S. at 308 & n.11. And in Farrar,

this Court recognized the importance of nominal damages

when it held that a section 1983 plaintiff who wins a

17

nominal damages award is a prevailing party for purposes

of awarding attorney’s fees under section 1988. Farrar v.

Hobby, 506 U.S. 103, 112 (1992). A judgment of damages in

any amount, this Court explained, “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.

History and the modern-day understanding of the

constitution’s case or controversy requirement are

consistent with this precedent on nominal damages.

Historically, the violation of a private right was sufficient

to establish a case or controversy even if no actual injury

resulted from the violation. Courts “presumed that the

plaintiff suffered a de facto injury merely from having his

personal, legal rights violated.” Spokeo, Inc. v. Robins, 136

S. Ct. 1540, 1551 (2016) (Thomas, J., concurring). A

property owner thus needed only to show that another

person placed a foot on his property in order to establish a

traditional case or controversy. See Entick v. Carrington, 2

Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (1765). And an

action would lie for the speaking of slanderous words even

“though a man does not lose a penny” as a result. Ashby v.

White, 92 Eng. Rep. 126, 136–37 (1702) (Holt, C.J.,

dissenting), rev’d, 91 Eng. Rep. 665. That conclusion rests

on the principle that “a damage is not merely pecuniary,

but an injury imports a damage.” Id. at 137. The “general

and indisputable rule” underlying these cases is that

“where there is a legal right, there is also a legal remedy.”

William Blackstone, Tracts, Chiefly Relating to the

18

Antiquities and Laws of England 15 (3d ed., Oxford,

Claredon Press 1771).

Under English common law, the appropriate remedy

was to award a nominal sum of money designed to

vindicate the victim’s rights. See Robinson v. Lord Byron,

2 Cox 5, 30 Eng. Rep. 3, 3 (1788) (awarding nominal

damages where plaintiff’s riparian rights had been invaded

but no damage was proven); Greene v. Cole, 2 WMS

Saunders 252, 85 Eng. Rep. 1037 (1670) (awarding nominal

damages where a tenant installed a new door in a rented

house and doing so did not “weaken[] or injure[]” the

house). The nominal damages awarded in those cases were

not intended to address any tangible injury, but an

intangible one—to make the plaintiff whole by vindication.

See F. Andrew Hessick, Standing, Injury in Fact, and

Private Rights, 93 CORNELL L. REV. 275, 284 (2008).

Early American courts adopted these principles as well.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(“[W]here there is a legal right, there is also a legal remedy

. . . whenever that right is invaded.” (quoting 3 WILLIAM

Blackstone Commentaries *23)); see also Webb v. Portland

Mfg. Co., 29 F. Cas. 506, 508 (Story, Circuit Justice, C.C.D.

Me. 1838) (No. 17,322) (explaining that “if no other damage

is established, the party injured is entitled to a verdict for

nominal damages”); Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 400 n.3 (1971)

(Harlan, J., concurring) (explaining that “jurisprudential

thought” at the time of the Framers “appeared to link

‘rights’ and ‘remedies’ in a 1:1 correlation”).

19

Tort law treatises soon recognized these principles as

widely-accepted. The first American treatise on tort law

explained that “legal damage” involved a “wrong or

violation of a private right” for which “damage will be

presumed.” 1 Francis Hilliard, The Law of Torts or Private

Wrongs 85, 87 (2d ed. 1861). As another early treatise put

it, a tort requires the concurrence of both “actual or legal

damage to the plaintiff, and a wrongful act committed by

the defendant.” C. G. Addison, Wrongs and Their

Remedies: Being a Treatise on the Law of Torts 1-2 (2d ed.

1864) (emphasis added).

These principles have carried through to this Court’s

modern standing jurisprudence, which establishes that an

injury in fact need not result in tangible, quantifiable harm

to present a case or controversy. “To establish Article III

standing, an injury must be ‘concrete, particularized, and

actual or imminent; fairly traceable to the challenged

action; and redressable by a favorable ruling.’” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2013). This Court

has affirmed time and again that “concrete” harm may be

“intangible.” Spokeo, 136 S. Ct. at 1549; see also Valley

Forge Christian Coll. v. Americans United for Separation

of Church & State, Inc., 454 U.S. 464, 786 (1982)

(“[S]tanding may be predicated on noneconomic injury.”).

Intangible harm cases are legion, particularly in the

context of First Amendment rights. See, e.g., Pleasant

Grove City v. Summum, 555 U.S. 460 (2009) (free speech);

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) (free exercise); Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969)

20

(adjudicating suit seeking nominal damages for past free

speech injury).

Finally, a rule permitting nominal damages to vindicate

a constitutional deprivation is consistent with this Court’s

understanding of Congress’s intent in enacting Section

1983. By its terms, the statute provides a federal right of

action for “the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42

U.S.C. § 1983. With it, Congress intended to “create[] a

species of tort liability,” Imbler v. Pachtman, 424 U.S. 409,

417 (1976), for violation of constitutional rights. And tort

law “has long permitted recovery by certain tort victims

even if their harms may be difficult to prove or measure.”

Spokeo, 136 S. Ct. at 1549 (citing Restatement (First) of

Torts §§ 569, 570 (1938)). Thus, Congress envisioned that

constitutional injury, like injury resulting from trespass or

other torts, could give rise to claims of nominal damages,

even absent a claim for compensatory damages.

Restatement (First) of Torts § 907.

21

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

HUNTON ANDREWS KURTH LLP

ELBERT LIN

Counsel Of Record

951 East Byrd Street, East Tower

Richmond, Virginia 23219

elin@HuntonAK.com

(804) 788-8200

ERICA N. PETERSON

KELLY R. OELTJENBRUNS

MATTHEW J. REVIS

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue, NW,

Suite 900

Washington, D.C. 20037

(202) 955-1500

Counsel for Amicus Curiae

September 29, 2020