Petition for Writ of Certiorari — Cecile Andrea Brown, Petitioner v. John C. Coughenour, Judge, United States District Court for the Western District of Washington, et al.

Supreme Court briefAug 6, 2021

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3fn tije Supreme Court of tfje

fHmteb States!

Cecile A. Brown,

Petitioner,

Solicitor General of the United States,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STA TES COURT OFAPPEALS FOR THE NINTH

CIRCUIT

BRIEF APPELLANT OF PRO SE / PETITIONER

FOR DECEASED Vet. William H. Ellis IN SUPPORT

OF APPELLANT RESPECTING MOOTNESS

Party-' Cecile A. Brown, APPELLANT,

Pro se ofRecord

3222 Violet St.,

Apt. A

Alexandria, LA 71301

(318) 528-0335

browncecile@vahoo.com

Pro Se for Appellant/Petitioner

RECEIVED

SEP - 8 2021

tcmssLi

QUESTIONS PRESENTED FOR REVIEW

Whether nominal damages account for harms associated *

with past constitutional violations acknowledges that plaintiffs

have suffered real injuries from alleged violations of

fundamental rights, regardless of whether their injuries

translate into dollar amounts? Whether the government

deprived plaintiffs of their constitutional rights involve

quintessential injuries that satisfy Article III standing

requirements? Whether the long* standing role of nominal

damages play in providing concrete redress for past

constitutional injuries, and would enable governmental actors

to evade accountability for their unconstitutional policies?

Whether the government has acted rationally and arbitrarily?

Whether the government has considered relevant factors and

not considered any extraneous factors for its decision. Has the

government considered what skills will be necessary for a

person to effectively discharge the duties connected with the

post? Has the government decision been tainted by the

consideration of extraneous factors such as gender or religion,

as the case maybe? Whether the executive action can be

described as reasonable and not whether it is exactly what the

court or the judge would have chosen to do in that situation?

Judicial review of legislative action. That is when laws passed

by law-making authorities are challenged by invoking Writ

jurisdiction in such cases. The first aspect of the review is

whether the legislation violates a fundamental right? Second,

whether the legislation violates a constitutional right other

than a fundamental right? And third, relevant in the case of

delegated legislation such as the Bar Council of India rule, 1975,

which have been made under the authority granted to the Bar

Council of India by the Advocates Act. 1961 is whether the scope

of the delegated legislation under review is ultra vires i.e

whether it goes beyond the scope permitted of such delegated

legislation by statute or otherwise? The court must consider

objectively, as a matter of legality and constitutionality,

whether the legislation can be sustained? Whether the question

of constitutionality of delegated legislation itself?

PETITION FOR A WRIT OF CERTIORARI

TABLE OF CONTENTS

Page

Interest of Appellant/Petitioner,

Summary of Argument.............

Argument....................................

Nominal Damages Afford Retrospective Relief

for Hard-to-Quantify Harms........................ 4

Cases Involving Nominal Damages are

II.

Ubiquitous, and Illustrate the Critical Role

Such Damages Play

in Vindicating Rights................................... 13

III.

Nominal Damages Allow Plaintiffs to Remedy

Retrospective Harms in Cases That Become

Moot on Other Grounds

Conclusion.........

Interest of Appellant...

Summary of Argument

Argument.....................

2-20

Conclusion....................

ill

TABLE OF AUTHORITIES

Pages

CasesAmato v. City ofSaratoga Springs,

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

Ashcroft v. abKidd, 563 U.S. 731 (2011)................

Ballen v. City ofRedmond,

466 F.3d 736 (9th Cir. 2006)...............................

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

ChaGn v. ChaRn, 568 U.S. 165 (2013)....................

Citizens for Free Speech, LLCv. Cty. ofAlameda,

2017 WL 912188 (N.D. Cal. Mar. 8, 2017).......

City ofLos Angeles v. Lyons, 461 U.S. 95 (1983)...

City ofRiverside v. Rivera, 477 U.S. 561 (1986)...

Clarkson v. Town ofFlorence,

198 F. Supp. 2d 997 (E.D. Wis. 2002)................

Comm, for First Amendment v. Campbell,

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

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

Doe v. Delie, 257 F.3d 309 (3d Cir. 2001)...............

Doe v. Par. ofSt. Tammany,

2008 WL 1774165 (E.D. La. Apr. 16, 2008).....

Douglas v. Cunningham, 294 U.S. 207 (1935)......

Elrod v. Burns, 427 U.S. 347 (1976)........................

Farrar v. Hobby, 506 U.S. 103 (1992).....................

Fehribach v. City of Troy,

412 F. Supp. 2d 639 (E.D. Mich. 2006)..............

Flanigan's Enters, v. City ofSandy Springs,

7,8

5, 6

5, 8

7, 10

868 F.3d 1248 (llth Cir. 2017)..............................

Freenor v. Mayor & Alderman ofSavannah,

2019 WL 9936663 (S.D. Ga. May 20, 2019)........

Gill v. WhitforJ 138 S. Ct. 1916 (2018)....................

Griffith v. Butte Sch. Dist. No. 1,

244 P.3d 321 (Mont. 2010).....................................

Grimm v. Gloucester Cty. Sch. Bd.,

-- F.3d

2020 WL 5034430

(4th Cir. Aug. 26, 2020)..........................................

Jessamy v. Ebren,

153 F. Supp. 2d 398 (S.D.N.Y. 2001)...................

Jones v. Clemente,

2006 WL 782474 (D. Or. Mar. 27, 2006).............

Keup v. Hopkins, 596 F.3d 899 (8th Cir. 2010)........

Landon v. City of Flint,

2017 WL 2806817 (E.D. Mich. Apr. 21, 2017)...

Lewis v. Conti Bank Corp., 494 U.S. 472 (1990)....

McLean v. City ofAlexandria,

106 F. Supp. 3d 736 (E.D. Va. 2015)...................

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003).....

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986)..................................................

Miller v. City of Cincinnati,

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

Mission Prod. Holdings v. Tempnology, LLC,

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

Morgan v Plano Indep. Sch. Dist.,

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

Mullenix v. Luna, 136 S. Ct. 305 (2015)....................

N. Y. State Rifle & Pistol Ass’n v. City ofNew York.,

140 S. Ct. 1525 (2020) .............................................

Ne. Fla. Chapter ofAssociated Gen. Contractors v.

City ofJacksonville, 508 U.S. 656 (1993)...........

11, 12

20, 21

21, 22

Nelson v. Miller,

2011 WL 6400524 (S.D. Ill. Dec. 19, 2011)............

Nelson v. Miller; 880 F.3d 868 (7th Cir. 2009)............

Norton v. City ofSpringfield,

324 F. Supp. 3d 994 (C.D. HI. 2018).........................

3, 15

Penwell v. Holtgeerts,

295 F. App’x 877 (9th Cir. 2008)..............................

Platt v. Moore,

2018 WL 2058136 (D. Ariz. Mar. 15, 2018)...........

Project Vote/Vo ting for Am., Inc. v. Dickerson,

444 F. App’x 660 (4th Cir. 2011).............................. 15, 16

Rex Trailer Co. v. United States,

350 U.S. 148 (1956).....................................................

Rich v. Fla. Dep’t of Corr.,

716 F.3d 525 (llth Cir. 2013)...................................

Risdal v. Halford, 209 F.3d 1071 (8th Cir. 2000)........

Rock for Life-UMBC v. Hrabowski,

594 F. Supp. 2d 598 (D. Md. 2009)..........................

Romanski v. DetroitEntm% LLC,

428 F.3d 629 (6th Cir. 2005)......................................

Sch. Dist. ofAbington Twp. v. Schempp,

374 U.S. 203 (1963).....................................................

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

Six Star Holdings, LLC v. City ofMilwaukee,

821 F.3d 795 (7th Cir. 2016)..................................... 16, 17

Soffer v. Costa Mesa,

607 F. Supp. 975 (C.D. Cal. 1985)............................

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)............

Sprint Commc’ns Co. v. APCC Servs.,

554 U.S. 269 (2008).....................................................

Talley v. District of Columbia,

433 F. Supp. 2d 5 (D.D.C. 2006)..........................

TrewheUa v. City ofLake Geneva,

249 F. Supp. 2d 1057 (E.D. Wis. 2003).....................

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

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

Constitution and StatutesU.S. Const.

amd. I............................................................................... passim

amd. II ............................................................................... 13, 14

amd. IV ................................................................................

amd. XIV ..............................................................................

42 U.S.C. § 1988....................................................................

42 U.S.C. § 1997e(e)............................................................ 6, 21

Miscellaneous25 C.J.S. Damages § 24 (2020).........................................

Joseph C. Davis & Nicholas R. Reaves, The Point Isn't

Moot■ How Lower Courts Have Blessed

Government Abuse of the Voluntary-Cessation

Doctrine, 123 Y.L.J. Forum 325 (Nov. 26, 2019)...... 9, 18

NYlawyer gets paid $1.50 for civil rights victory,

N.Y. Post (Dec. 3, 2011).................................................

Patrick Yeagle, Springfield panhandling ordinance ruled

unconstitutional,

Ill. Times (Aug. 13, 2015).................................................. . 2

Reporter Citation- N/A

9* Cir./ W.A.W.D.

Decided case/No.

Reference List

In-text citation

Brown v. USA, et al., I

(June 16, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1-2

(July 29, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1-2

(July 28, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1

(June 16, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1

(June 16, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1

(June 16, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1-2

(July 28, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al, 2021)

Brown v. USA, et al., 1*2

(July 28, 2021)

Brown v. USA, et al.,

(2021) or (Brown v.

USA, et al., 2021)

Brown v. Coughenour, et

al.,

Brown v. Coughenour

(2021) or (Brown v.

Coughenour, et al.,

2021)

21-35386

21-35383

21-35428

21-35386

21-35383

21-35428

C21-MJP

STATEMENT OF THE CASE

The background of the relationship between

plaintiff and defendant applicable to the case the

defendant owed a duty to the plaintiff. A duty arises when

the law recognizes a relationship between the defendant

and the plaintiff requiring the defendant to act in a

certain manner, often with a standard of care, toward the

plaintiff. A judge, rather than a jury, ordinarily

determines whether a defendant owed a duty of care to a

plaintiff, and will usually find that a duty exists if

a reasonable person would find that a duty exists

under similar circumstances. A defendant breaches such a

duty by failing to exercise reasonable care in fulfilling the

duty. Plaintiff is related to the words plaintive and

complain. You can think of a plaintiff as the person who

makes a complaint in court. Defendant is related to the

word defend. A defendant is the person who must defend

themselves against the complaints brought forward by the

plaintiff.

The incident occurred over the Board of Veteran

Appeals phone line. I was told in December of 2020 that

BVA was finished with Finality of appeal and the decision

was about to be mailed to me. This incident rolled over to

January of 2021 and I did not receive my decision. I was

told to file a lawsuit against the government because BVA

refuses to send finality decision and benefits. I was told

over the phone that VA calculations were $2 billion

dollars with $10, 000.00 monthly benefits. I have not seen

my decision or benefits and the BVA started conflict with

me and told me to sue them because their company

receives lawsuits all the time. Here I am suing because of

the failure of duty for the BVA government to send...

APPENDIX

APPENDIX B, E, D

REASONS FOR GRANTING THE PETITION

Pursuant to Rule 10, A state court or a United States court of

appeals has decided an important question of federal law that

has not been, but should be, settled by this Court, or has

decided an important federal question in a way that conflicts

with relevant decisions of this Court. Cases resolving clear

conflicts of law, Important or unique cases, interesting

cases.

Appellate Jurisdiction.

Article III, § 2, cl. 2, which provides that all jurisdiction not

original is to be appellate, “with such Exceptions, and under

such Regulations as the Congress shall make,” has been

utilized to forestall a decision which the congressional majority

assumed would be adverse to its course of action. 28 U.S. Code

§ 1251(a) - Original jurisdiction. STATEMENT OF THE

BASIS FOR JURISDICITION.

Jurisdiction is based on diversity of citizenship and

federal question. The amount in controversy exceeds

Two Million Dollars ($2,000,000.00). This Court has

supplemental jurisdiction over Plaintiffs’ state law

claims arising under the statutory and common law

pursuant to 28 U.S.C. § 1338(b), because those claims

are joined with substantial and related claims under

federal law. The Court also has subject matter

jurisdiction over those claims pursuant to 28 U.S.C. §

1367, because Plaintiffs’ state law claims are

interrelated with Plaintiffs’ federal claims and arise

from a common nucleus of operative facts such that the

adjudication of Plaintiffs’ state law claims with

Plaintiffs’ federal claims furthers the interest of judicial

economy.

Introduction

Concise statement of the grounds on

which jurisdiction is invoked. R. 14.1 (e). The

rule has been justified on the ground that

persons should not be encouraged to

circumvent the provisions made by a statute,

providing for a mechanism and procedure to

challenge administrative or quasi'judicial

actions taken thereunder (Union of India v.

TR Varma (AIR 1957 SC 882)). Grounds

which jurisdiction is invoked in the high

court under Article 226, claiming it can

invoke its jurisdiction under the head of any

other purpose. It could also, of course,

approach a civil court and file a civil suit

seeking appropriate reliefs against the

. government. The High Court would still

apply the principle that the contractor must

exercise that alternate equally efficacious

remedy. Therefore, the mere fact that a

claim is being made against the government

does not mean that the High Court must

exercise its jurisdiction.

Article 14, states that the state shall not

deny to any person equality before the law. It

may allege that its fundamental right under

Article 14 has been violated because the

government has unfairly discriminated

against it by paying the nine other cement

suppliers while withholding the amount due

to it. Therefore, subject to the specific facts of

a case rate, writ jurisdiction may be invoked

against private parties as well if the nature

of their activities calls for it. First, a high

court is not likely to invoke its writ

jurisdiction for the adjudication of a dispute

involving a violation of purely private

interests for which one or more alternate,

equally efficacious remedies exist in law.

Second, this is the case even if the party that

is alleged to be in the wrong is the state.

Third, a high court may invoke its

jurisdiction for the adjudication of a dispute

involving the violation of private rights. If, at

the same time the dispute involves the

violation of a fundamental right or the

violation of a law for which no other remedy

has been provided. This is often the case

when the party that is alleged to be in the

wrong is the state. And finally, a high court

may invoke Article 226 against a private

person if its activities are of a public nature

or they otherwise fall within the parameters

of the third proposition above. It is shown

that the authority of the law was guilty of a

breach of natural justice or acted

unreasonably. If the authority has

considered the matters which it is its duty to

consider and has excluded irrelevant

matters, its decision is not reviewable unless

so absurd that no reasonable authority could

have reached it. The judiciary must ensure

that the executive acts according to law.

The burden of proving that particular

legislation is unconstitutional or ultra-virus

is a statute. The legislation carries a

rebuttable presumption of constitutionality

or legality.1

If the delegated legislation involves the

defects of substance or if the exercise of any

power will be limited by the substance of

power i.e., what the administrative authority

is empowered to do, it is called substantive

Ultra vires. It means that the delegated

legislation goes beyond the scope of authority

conferred by the parent statute or by the

constitution. It is the fundamental principle!

|of law that ra public authority cannotactf

outside the powers i.e.. ultra viresj The

doctrine refers to the extent; scope and range

of power conferred by the parent action the

concerned authority to make rules. To be

valid a rule must fulfill two conditions, they

are*

1. It must conform to the provisions of statute

under which it is framed; and

11. Substantive Ultra Vires

2. Procedural Ultra Vires

3. Substantive Ultra Vires

2. It must come within the scope and purview

of the rule making power of the authority

framing the rule.

If either of those conditions is not fulfilled^

the rule would be void as parliament neverl

intended to give authority to make such

Wes which are unreasonable and ultraf

vires J A delegated legislation may be held to

be invalid on the ground of substantive ultra

vires in the following circumstances.

1. Constitutionality of Parent act*

Constitutionality of parent act plays a

dominant role for delegated legislation under

which it is made. If the parent act, which

empowers the administration to form

necessary rule, bye laws, regulations or any

form of delegated legislation, itself

unconstitutional or Ultra vires the

constitution, delegated legislation made

under it is necessarily bad and will be ipso

facto invalid. The parent act may be

unconstitutional on the ground breach of

fundamental rights, other constitutional

provisions and on the ground of excessive

delegation.

The supreme court of Nepal under the,

constitution has the power to declare the

inconsistent laws void either ab initio or,^

from the date of its decision but mostly it_

^declares the inconsistent laws void from the

date of its decision by calculating their]

pragmatic values.1

2. Delegated legislation ultra vires

the constitution*

Like the parent act delegated legislation may

be challenged on the ground of its

constitutionality. Sometimes, parent act may

not be formed unconstitutional but delegated

legislation made under it may conflict with

the constitution^The courts may be asked tcj

consider the question of constitutionality of

delegated legislation itself.

Delegated legislation is ultra vires the

parent actp?he validity of delegated legislation can be

questioned on the ground that it is ultra

ivires the, parent actj It has become an

accepted principle of law that the delegated

exercise of legislative power must be

exercised in conformity with the principal

power or authority. If delegated legislation

does not conform exactly to the power

granted or if it is in direct conflict with any

provision of Act, under which it is made, it

can be held invalid. Rules whether made

under the constitution or a statute, must be

intra vires the parent law under which

power has been delegated. Thus, delegated

legislation, repugnant to or in excess of or

overriding the provision of parent act is ultra

vires.

Delegated legislation Ultra vires the General

rule*

The validity of delegated legislation can be

challenged on the ground that it is ultra

vires the general law. It takes place, when

the delegated legislation makes a law in

force unlawful and unlawful act lawful.

Unreasonableness1

Generally, statute cannot be challenged o3

J;he ground of unreasonableness. But, irl

exceptional cases, it can be challenged on the

ground of unreasonableness.

Mala fide-*

Mala fide means 'bad faith’ or ulterior

motive. Delegated legislation can be

challenged on the ground of mala fide, if it

has no relation to the purpose for which the

lawmaking power was delegated. But in

practice, it is extremely difficult to

substantiate these grounds before the court.

Excessive DelegationA statute which is invalid on account of

excessive delegation, or delegated legislation

which is ultra vires the statute, will not

cease to be so merely because the legislature

has made certain amendment to the statute

not directly curing the defect.

1. Sub-delegationIf the Executive i.e., the delegate further

delegates such power to any subordinate

authority or agency it is called sub

delegation. The principle of sub-delegation is

subject to criticism and not accepted, unless

there is a provision express as implied, to

that effect. Hence, the validity of an act

under sub-delegation can be questioned ultra

vires.

2. Procedural Ultra ViresIf the administrative authority fails to follow

required procedure prescribed by parent act

or by the general rule, it is known as______

procedural ultra vires. To apply the doctrine

jof Ultra vires, the first question for thej_

pourts to decide is whether the provision in

jthe act prescribing the procedure is

mandatory or directoryJ Rules become

invalid only in the case of non-compliance

with the mandatory procedure.

Noncompliance of directory procedure does

not render them invalid. So, an absolute

enactment must be obeyed or fulfilled exactly

but it is sufficient if directory enactment be

obeyed or fulfilled substantially. Basically,

non-compliance of following procedure

declares delegated legislation void.

Court issued a directory order in the name of

the electricity authority to necessarily

perform the task of publication for the

purpose of Bye Law 22 and 27(1) of the said

Bye-Laws.

pourt may exercise jurisdiction in the]

interests of justice.

The first factor is whether the person

seeking to invoke Writ jurisdiction has clean

hands. That is whether the petitioner has

engaged in inequitable or illegal behavior.

The conduct of parties during Writ

proceedings if the parties conduct during the

proceedings is inequitable or illegal.

That is whether the person seeking relief has

acted diligently or whether there has been

an inordinate delay on his or her part.

The rule of exhaustion of a remedy before

invoking jurisdiction under Article 226 has

been characterized as a rule of policy,

convenience and discretion rather than a

rule of law, as per decision of the Supreme

Court in State of Uttar Pradesh v Md. Nooh

(AIR 1958 SC 86) and Baburam Prakash

Chandra Maheshwari v Antarim Zila

Parishad (AIR 1969 SC 556).

The rule has been justified on the ground

that persons should not be encouraged to

circumvent the provisions made by a statute,

providing for a mechanism and procedure to

challenge administrative or quasi-judicial

actions taken thereunder (Union of India v

TR Varma (AIR 1957 SC 882)).

The Income-tax Act is a code in 3 itself as

regards legal remedies too. Against

impugned orders, petitioners have effective

and comprehensive legal remedies by way of

appeal under section 246(l)(i) of the Act,

further second appeal to the Income-tax

Appellate Tribunal, a reference to the High

Court and further appeal to the Supreme

Court. Article 226 is not meant to circumvent

statutory legal remedies. It is quite often

held and reiterated by Courts that ordinarily

the High Court should not entertain writ

applications filed, bypassing the statutory

legal remedies, where violation of

fundamental rights is not involved.

At times it becomes necessary for the Court

to remind itself about the self-imposed

restraints and limitations in exercise of the

power granted to the Court by the

Constitution under Article 226. The Court

can take judicial notice of the fact that large

numbers of writ petitions are filed in the

High Court by persons without exhausting

statutory alternative remedies or other

remedies available to them.

Further, what can be gathered from the

decisions of the Supreme Court in U P Jal

Nigam v Nareshwar Sahai Mathur (l SCC

21); Titaghur Paper Mills Co. Ltd. v State of

Orissa (142 ITR 663) and HB Gandhi v Gopi

Nath and Sons ((1990) 77 STC l) is that

where statutory remedies are available or a

statutory Tribunal has been set up, a

petition under Article 226 should not be

entertained, unless the statutory remedies

are ill'suited to meet the demands of any

extraordinary situation, for example, where

the very vires of the statute is in question, or

where private or public wrongs are so

inextricably mixed up and the prevention of

public injury and the vindication of public

justice require that recourse should be had to

Article 226; or where the alternative remedy

is onerous or burdensome or inadequate; or

where it involves inordinate delay or is

illusory in nature; where the impugned

action is palpably wrong or goes to the root of

the jurisdiction or where there is total lack of

jurisdiction in the authority.

It is quite often stressed by Courts that

judicial review is not against a decision!

under attack but against the decision-]

making process,.

Likewise, the existence of an alternative

remedy is not an absolute bar to the issue of

a writ of certiorari; and a writ of mandamus

would not be refused merely because the

assesses could have filed a suit. A writ of

prohibition or mandamus may be issued to

restrain recovery proceedings in pursuance

of an assessment order made without or in

excess of jurisdiction, even if such a plea as

to jurisdiction was not raised in the

assessment proceedings.

...No other Court subordinate to High Court

has got the power to issue such prerogative

writs... Under Article 226 of the Constitution

of India, the High Court has got the power,

throughout the territories in relation to

which it exercises its jurisdiction, to issue to

any person or authority, including in

appropriate cases, any Government, within

those territories, directions, orders or writs

including writs in the nature of habeas

corpus, mandamus, prohibition, quo

warranto and certiorari or any of them for

the enforcement of fundamental rights

conferred by Part III of the Constitution and

for any other purpose. In fact, the power of

the High Court to issue writs is larger than

that of Hon*ble Supreme Court as Hon*ble

Supreme Court can issue writs under Article

32 of the Constitution of India in cases where

the fundamental rights of a person have

been violated, whereas the High Court can

issue writs in respect of the violation of

fundamental rights or in respect of cases

where the legal rights of the persons have

been jeopardized. Article 226 read as under*

Article 226 - Power of High Courts to issue

certain writs.

Article 227 ■ Power of Superintendence over

all courts by the High Court.

The Public Interest Litigation has opened

new gates for the litigants to invoke the

jurisdiction of the High Court. Now, any

public-spirited person or a social activist

group can invoke the jurisdiction of the High

Court by filing a Public Interest Petition. The

filing of these petitions is now regulated by

the Rules farmed by the High Court. The High

Court has also exercised jurisdiction on the

basis of news items published in the

newspapers and on the basis of the letters

written by the aggrieved persons to it.

Appellate and Revisional Jurisdiction

...As per Section 100 of the Code of Civil

Procedure, an aggrieved party can file an

appeal to the High Court from every decree

passed in appeal by any court subordinate to

the High Court, if the High Court is satisfied

that the case involves a substantial question

of law. Section 100 of the Code of Civil

Procedure reads as under* *

Section 100 - Second appeal.

Even under the fiscal statutes, such as

Income-tax Act, the High Court exercises

appellate jurisdiction. Section 260 A of the

Income-Tax Act, 1961 confers the right of an

appeal against any order passed in appeal by

the Income Tax Appellate Tribunal, if the

High Court is satisfied that the case involves

a substantial question of Law.

Further, under Section 115 of the Code of

Civil Procedure, the High Court may call for

the record of any case, which has been decided

by any court subordinate to the High Court

and in which no appeal lies thereto, if it

appears to the High Court that the

subordinate court has exercised a jurisdiction

not vested in it by law or has failed to exercise

the jurisdiction so vested or has acted in the

exercise of its jurisdiction illegally or with

material irregularity. The High Court can a

withdraw any suit, appeal or other proceeding

pending in any court subordinate to it and try

or dispose of the same or transfer the same for

trial or disposal to any court subordinate to it

and competent to try or dispose of the same or

re-transfer the same for trial or disposal to the

court from which it was withdrawn. Section

115 of the Code of Civil Procedure is as under115. Revision.

(1) The High Court may call for the record of

any case which has been decided by any

Court subordinate to such High Court and in

which no appeal lies thereto, and if such

subordinate Court appears (2) Provided that the High Court shall not,

under this section, vary or reverse any order

made, or any order deciding an issue, in the

course of a suit or other proceeding, except

where the order, if it had been made in favor

of the party applying for revision, would

have finally disposed of the suit or other

proceedings.

Subordinate Civil Courts

The Punjab Courts Act, 1918 determines the

jurisdiction of the civil courts subordinate to

the High Court. The said Act has been

amended from time to time by the present

States of Punjab and Haryana. The Union

Territory of Chandigarh generally adopts the

Laws enacted by State of Punjab under the

Provisions of Punjab Reorganization Act,

1966. The civil judges in the States of Punjab,

Haryana and Chandigarh have unlimited

pecuniary jurisdiction i.e., that any suit of any

value can be instituted before the civil judge.

The District Judges including Additional

District Judges have power to hear appeals

against the judgment and decree granted by

civil judges under the Code of Civil Procedure.

However, certain statues confer jurisdiction of

first appeal before the High Court as well. The

High Court has power to interfere with the

judgment and decree if the civil court in

second appeal if the findings recorded give

rise to substantial question law.

INTEREST OF APPELLANT1

Appellant disagrees with many issues, but share

the belief—informed by experiences—nominal

damages play a critical role in preserving plaintiffs’

ability to vindicate constitutional rights and to

challenge unconstitutional government policies. This

case involves petitioner seeking a ruling on the

constitutionality of a university speech policy that the

school applied to restrict their First Amendment

rights, then changed mid-litigation. But the question

presented implicates civil-rights litigants’ ability to

vindicate constitutional rights of every kind—the

rights to speak, to worship, and to be free from

compelled worship; rights to be free from unjust

searches and excessive force; and rights to freedom of

association and equal protection of the laws, among

others.

Based on appellants experience, a ruling that

nominal-damages claims are insufficient to prevent a

case from becoming moot will substantially

1 Appellant affirm that no counsel for any party authored this

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

monetary contribution intended to fund the preparation or

submission of this brief. No person other than

appellant/petitioner, made a monetary contribution to its

preparation or submission. No blanket consents filed. No oral

argument because appellant cannot afford to come before the

government since the matter is about the government not issuing

funds for finality of litigation case.

(i)

undermine civil rights plaintiffs' ability to protect

their constitutional rights.

SUMMARY OF ARGUMENT

Similar dynamics play out in a wide range of civil

rights suits. When confronted with legal challenges to

unconstitutional or illegal policies, governments often

respond by changing those policies, and then contend

that the cases are moot. If that governmental action

ended the case, plaintiffs would obtain incomplete

relief. The government would stop violating their

rights going forward. |But courts would be unable to

remedy the real but often difficult'to’quantify harms

that plaintiffs already suffered'. The same scenario

would recur for litigants whose entitlement to

prospective relief becomes moot for other reasons, like

prisoners’ completion of their sentences or students’

graduations.

Plaintiffs’ ability to plead nominal damages to

account for the harms associated with past

constitutional violations acknowledges that plaintiffs

have suffered real injuries from alleged violations of

fundamental rights, regardless of whether their

injuries readily translate into dollar amounts.

Nomina] damages thus play a key role in vindicating

rights and holding governments accountable for

unconstitutional policies.

ARGUMENT

I. Nominal Damages Afford Retrospective Relief for

Hard’tO'Quantify Harms

1. Claims that the government has deprived

plaintiffs of their constitutional rights involve

quintessential injuries that satisfy Article III

standing requirements. “[I]ntangible injuries can

nevertheless be concrete.” Spokeo, Inc. v. Robins, 136

S. Ct. 1540, 1549 (2016). Thus, this Court has held in

myriad contexts that alleged constitutional violations

constitute injuries-in-fact. E.g., Gill v. Wbitford\ 138

S. Ct. 1916, 1929 (2018) (‘“[Vloters who allege facts

showing disadvantage to themselves as individuals

have standing to sue’ to remedy that disadvantage.”);

Ne. Fla. Chapter of Associated Gen. Contractors v.

City of Jacksonville, 508 U.S. 656, 666 (1993) (“The

‘injury in fact’ in an equal protection case ... is the

denial of equal treatment resulting from the

imposition of [a] barrier, not the ultimate inability to

obtain [a] benefit.”); Carey v. Piphus, 435 U.S. 247,

266 (1978) (“[E]ven if [respondents] did not suffer any

other actual injury, the fact remains that they were

deprived of their right to procedural due process.”);

Elrod v. Burns, 427 U.S. 347, 373 (1976) (‘The loss of

First Amendment freedoms, even for minimal periods

of time, unquestionably constitutes irreparable

injury.”); Sch. Dist. ofAbington Twp. v. Schempp, 374

U.S. 203, 224 n.9 (1963) (“The parties here are school

children and their parents, who are directly affected

by the laws and practices against which their

[Establishment Clause] complaints are directed,” and

“[t]hese interests surely suffice to give the parties

standing to complain.”). It is hard to imagine how the

law could be otherwise. The premise of plaintiffs’ suits

is that the government has deprived someone of the

basic rights that our political system guarantees. If

that injury is not actual and concrete, nothing is.

Many constitutional violations are of paramount

significance but difficult to reduce to dollars and cents.

“Unlike most private tort litigants, a civil-rights

plaintiff seeks to vindicate important civil and

constitutional rights that cannot be valued solely in

monetary terms.” City ofRiverside v. Rivera, All U.S.

561, 574 (1986) (plurality op.). Take the loss when the

government forces individuals to engage in ten

minutes of involuntary worship, or silences speech on

a particular day, or engages in a fleeting but

unconstitutional search. The constitutional violation

is gravely important, but often the “plaintiffs

economic injury [is] so minimal as to be essentially

nominal.” Romanski v. DetroitEntm’t, LLC, 428 F.3d

629, 645 (6th Cir. 2005). Or the economic injury may

be so difficult to value that supporting an award of

compensatory damages through expert testimony or

other competent evidence would be prohibitively

expensive.

For centuries, nominal damages have supplied the

answer to this valuation problem- by pleading a dollar

or two, plaintiffs aver that they have experienced

harms that are real, but difficult to value or prove in

monetary terms. Petrs.’ Br. 17. Thus, “[clommoniaw

courts traditionally have vindicated deprivations of

certain ‘absolute’ rights that are not shown to have

caused actual injury through the award of a nominal

sum of money.”

Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 308 n.ll (1986); see Carey;

435 U.S. at 308 n.ll (1978) (same).

Nominal damages therefore perform a critical

function. Plaintiffs who allege an actual harm in the

form of a constitutional violation need not adduce the

type of evidence of particular costs, expenses, or losses

attributable to that violation, as would be the case for

proving compensatory damages. Nominal damages

substitute for compensatory damages, avoiding the

need to calculate “damages based on some imdefinable

‘value’ of infringed rights” by allowing plaintiffs to

recover without particularized proof of pecuniary

harm. Stachura, All U.S. at 308 n.ll; see Carey; 435

U.S. at 251-52 (similar); Petrs.’ Br. 18-19. Put another

way, “[a]n award of nominal damages does not mean

that there were not actual economic damages, just

that the exact amount of damages attributable to the

improper conduct was not proven.” 25 C.J.S. Damages

§ 24 (2020).

For some plaintiffs, nominal damages may be the

only form of monetary relief available. Prisoners

cannot recover compensatory damages “for mental or

emotional injury suffered while in custody without a

prior showing of physical injury or the commission of

a sexual act.” 42 U.S.C. § 1997e(e). Nominal damages

are thus often the only monetary relief prisoners can

seek to vindicate their constitutional rights.

Because nominal damage is designed to

compensate for actual past harms, it follows that a

case seeking nominal damages remains live even if the

government changes the challenged policy going

forward.

To be sure, that change may moot

prospective relief if the plaintiff will never again face

the same unconstitutional policy, and the government

is unlikely to resume its challenged practice. E.g.t

City ofLos Angeles v. Lyons, 461 U.S. 95, 109 (1983).

But that change does not remedy the past violation

that the plaintiff experienced.

That nominal-damages awards involve only small

sums of money is irrelevant. A live Article III

controversy requires only “a dollar or two.” Sprint

Commc’ns Co. v. APCC Servs.y 554 U.S. 269, 289

(2008); see Mission Prod. Holdings v. Tempnology,

LLQ 139 S. Ct. 1652, 1660 (2019). That is because an

award of damages, “whether compensatory or

nominal,” alters the legal relationship between the

parties and “modifies the defendant’s behavior for the

plaintiffs benefit by forcing the defendant to pay an

amount of money he otherwise would not pay.” Farrar

v. Hobby,; 506 U.S. 103, 113 (1992). “As long as the

parties have a concrete interest, however small, in the

outcome of the litigation, the case is not moot.” ChaGn

v. Chafin, 568 U.S. 165, 172 (2013); Petrs.’ Br. 22-23.

2. The rule that nominal damages allow plaintiffs

to continue litigating past constitutional wrongs also

makes eminent sense. “Nominal relief does not

necessarily a nominal victory make.” Farrar,; 506 U.S.

at 121 (O’Connor, J., concurring).

“While the

monetary value of a nominal damage award must, by

definition, be negligible, its value can be of great

significance to the litigant and to society.” Amato v.

City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir.

1999). “Regardless of the form of relief he actually

obtains, a successful civil-rights plaintiff often secures

important social benefits that are not reflected in

nominal or relatively small damages awards.” Rivera,

477 U.S. at 574 (plurality op.).

Many civil-rights litigants thus place great

significance on even a nominal recovery. Take Dennis

Ballen, who successfully sued the city of Redmond,

Washington, after the city tried to apply its sign code

to stop him from advertising his bagel business using

sidewalk signs.

Ballen argued that the sign

ordinance—which arbitrarily privileged some types of

speech over others—violated the First Amendment.

The court agreed. Ballen undoubtedly suffered some

economic harm from diminished traffic to his store due

to his inability to advertise. But because his harm was

difficult to value, he decided not to seek compensatory

damages, and instead sought—and obtained— one

dollar in nominal damages.

Ballen v. City of

Redmond, 466 F.3d 736, 741 (9th Cir. 2006). Ballen

now prominently displays the dollar bill, framed,

above his shop’s counter. Or take Eon Shepherd, a

prisoner who successfully recovered one dollar when

guards unconstitutionally touched and tore at his

dreadlocks, violating his Rastafarian beliefs and the

Free Exercise Clause. Notwithstanding the small

award, Shepherd was “really satisfied because I feel

like I’ve been vindicated.” NYlawyer gets paid $1.50

for civil rights victory,; N.Y. Post (Dec. 3, 2011).

Further, by preventing governments from

terminating civil-rights cases prematurely, nominaldamages claims produce rulings that mark the path

for government actors, helping them avoid future

violations. Petrs.’ Br. 20. The availability of nominal

damages “guarantee[s] that a defendant’s breach” of a

plaintiffs rights “will remain actionable regardless of

[its] consequences in terms of compensable damages.”

Amato, 170 F.3d at 318. Otherwise, governments

could freely implement illegal policies, as long as

governments rescind those policies before a ruling on

the merits.

The government may defend

unconstitutional policies on the merits against pro se

plaintiffs, where it is likely to win, but then relent and

moot the litigation when it faces sophisticated counsel

and is likely to lose. This risk is particularly acute in

prison litigation, where the government has

significant discretion over when and how it will

modify its policies. See Joseph C. Davis & Nicholas R.

Reaves, The Point Isn't Moot• How Lower Courts

Have Blessed Government Abuse of the VoluntaryCessation Doctrine, 123 Y.L.J. Forum 325, 329-30

(Nov. 26, 2019) (hereinafter, Davis & Reaves).

By preventing the government from changing

challenged policies to moot cases, nominal-damages

claims also mitigate the government’s ability to game

its way into maintaining qualified immunity. Petrs.’

Br. 37-39. A rule requiring courts to dismiss nominaldamages claims as moot prevents the development of

“clearly established” law that would allow plaintiffs to

hold government officials accountable for violating

constitutional rights. That is especially true because,

to defeat qualified immunity, plaintiffs must identify

either “controlling authority^’ or “a robust consensus of

cases of persuasive authority’ that “placed the

statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd\ 563 U.S. 731, 741-42 (2011). And

those authorities must make clear that “the violative

nature of particular conduct is clearly established . . .

in fight of the specific context of the case.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam). If

government actors could unilaterally moot cases by

amending official policies before a ruling on the

merits, the government could perennially thwart the

development of this “controlling authority.”

Government officials, too, may benefit from

adjudication of nominal-damages claims. In a case

challenging civil-forfeiture policies, state and county

officials successfully argued that the case was not

moot based on the plaintiffs’ nominal-damages claims,

and the court ultimately held that the officials were

not subject to section 1983 liability. Platt v. Moore,

2018 WL 2058136, at *2 (D. Ariz. Mar. 15, 2018).

Thus, a ruling on the merits of a nominal damages

claim can clarify the legality—as well as the

illegality—of governmental action.

Finally, a civil-rights plaintiff who recovers

nominal damages is a prevailing party under 42

U.S.C. § 1988 and may be entitled to an award of

attorneys’ fees. Of course, if the award is nominal,

courts may consider the small amount of the award as

“hearting! on the propriety of fees awarded under §

1988.” Farrar; 506 U.S. at 114; see, e.g., Citizens for

Free Speech, LLC v. Cty. of Alameda, 2017 WL

912188, at *9-10 (N.D. Cal. Mar. 8, 2017) (awarding

only 20% of requested fees in light of nominaldamages award); Talley v. District of Columbia, 433

F. Supp. 2d 5, 9-10 (D.D.C. 2006) (denying fee request

in light of nominal nature of damages); Petrs.’ Br. 4849.

But Congress provided for attorneys’ fees

precisely because the ability to obtain fees is often an

important incentive for lawyers to take suits on behalf

of plaintiffs who could not otherwise afford toj

'vindicate their rights] [And the availability of

attorneys’ fees may deter governmental actors from!

unconstitutional conduct in the first place-1

3. The Ninth Circuit’s contrary rule improperly

dismisses nominal damages as a legal nullity, and

thus confuses whether a plaintiff has suffered a

remediable harm with whether the plaintiff has

suffered a readily quantifiable one. The Ninth Circuit

believed that because nominal damages are a “trivial

sum,” they must be “awarded for symbolic, rather

than compensatory, purposes.” Flanigan's Enters, v.

City ofSandy Springs, 868

F.3d 1248, 1268 (9th Cir. 2017) (en banc). But the

question is whether nominal damages are a remedy of

any sort, not how precisely they actually compensate

alleged harms.

The notion that damages must be readily

calculable or must fully compensate plaintiffs for the

harm they have suffered to satisfy Article III is plainly

incorrect. In several statutory schemes, for example,

statutory damages serve the same remedial purpose

as nominal damages, giving plaintiffs “some

recompense for injury due to [them], in a case where

the rules of law render difficult or impossible proof of

damages or discovery of profits.”

Douglas v.

Cunningham, 294 U.S. 207, 209 (1935) (statutory

damages under Copyright Act of 1909). In other civil

cases, “it is the function of liquidated damages to

provide a measure of recovery” when the damages

resulting from an injury “may be difficult or

impossible to ascertain.” Rex Trailer Co. v. United

States, 350 U.S. 148, 153-54 (1956). No one would

argue that a plaintiffs entitlement to only these forms

of monetary relief, rather than full compensatory

damages, renders a claim nonjusticiable. From the

standpoint of Article III, there is no principled

difference between liquidated, statutory, and nominal

damages.

The Ninth Circuit’s approach also encourages

absurd results. In Freenor v. Mayor & Alderman of

Savannah, for example, Eleventh Circuit precedent

foreclosed plaintiffs’ argument that a nominaldamages claim saved their First Amendment

challenge to a repealed tour-guide licensing

ordinance. 2019 WL 9936663 (S.D. Ga. May 20, 2019).

But two of the plaintiffs had also pleaded $10 in

compensatory damages, reflecting the amount that

they had paid for their tour-guide licenses under the

old regime. The court expressed “concern” that

“Plaintiffs’ request for $10 in compensatory damages

is simply an alternative way to plead nominal

damages.” Id. at *7. But because those two plaintiffs

sought “retrospective compensatory damages in

addition to the nominal damages pled by all

Plaintiffs,” the court deemed the case not moot. Id. at

*7. All four plaintiffs, however, suffered the same

constitutional harm—infringement of their right to

speak to members of the public about the history of

Savannah. By holding that two plaintiffs could obtain

redress because they also paid $10 for licenses, but the

other two plaintiffs could not because their only harm

was having their speech chilled, the Ninth Circuit

missed the forest for the trees.

More broadly, the Ninth Circuit's approach

arbitrarily treats similarly situated plaintiffs

differently depending on semantic differences in their

pleadings. Petrs.’ Br. 42*43. Some plaintiffs might

characterize damages as “compensatory,” which

would allow them to avoid mootness under the Ninth

Circuit’s rule. E.g., Nelson v. Miller., 2011 WL

6400524, at *3 (S.D. Ill. Dec. 19, 2011) (characterizing

as “actual damages” a $10 per day award to Catholic

prisoner who received inadequate nutrition during

Lent due to prison policy refusing meat*free meals).

Others might include in their complaint only a general

claim for relief, without distinguishing the nature of

the damages they seek. Still others might plead a

request for compensatory damages in their complaint,

without any real intention to prove a precise measure.

The underling constitutional injury would be the

same, as would the relief (some form of damages).

And in still other cases, courts may award nominal

damages on finding a constitutional violation even if

the plaintiffs did not specifically request them. E.g.,

Searles v. Van Bebber.; 251 F.3d 869, 879 (10th Cir.

2001) (“an award of nominal damages is mandatory

upon a finding of a constitutional violation”); Risdal v.

Halford, 209 F.3d 1071 (8th Cir. 2000) (plain error to

give the jury discretion not to award nominal damages

on a finding of a violation of free-speech rights). But

these groups of plaintiffs could face wildly varying

outcomes should governmental actors change the

challenged policy in response to litigation. This Court

should reject the Ninth Circuit’s unprincipled

approach, which would unjustifiably compromise

civil-rights plaintiffs’ ability to vindicate their

constitutional claims.

II. Cases Involving Nominal Damages are Ubiquitous,

and Illustrate the Critical Role Such Damages

Play in Vindicating Rights

Jettisoning the longstanding rule that nominaldamages claims allow plaintiffs to continue seeking

redress for past constitutional violations even when

governments repeal the challenged policy would also

compromise plaintiffs’ ability to vindicate all sorts of

constitutional rights. The sheer volume of cases

involving this fact pattern illustrates the point across

myriad constitutional claims. Indeed, the Court faced

this issue in the Second Amendment context just last

Term.

The following cases illustrate how often plaintiffs’

access to justice hinges on the availability of nominal

damages. The postures of these cases differ; in some

cases, courts assessed whether plaintiffs’ nominaldamages claims could proceed at the pleadings stage;

in others, courts resolved the cases on the merits.

Amici may disagree as to whether particular cases

involved meritorious claims. But all agree that the

nominal-damages claims matter, that these claims are

not mere artifices to produce advisory opinions, and

that plaintiffs pursuing nominal damages deserve

their day in court.

1. Second Amendment. In January 2019, the

Court granted review of whether New York City’s

ordinance prohibiting residents from carrying

firearms to out - of city gun ranges, competitions, or

second homes

violated petitioners’

Second

Amendment rights. Shortly thereafter, New York

City “quickly changed its ordinance,” and New York

State “enacted a law making the old New York City

ordinance illegal.” N. Y. State Rifle & Pistol Ass*n v.

City of New York, 140 S. Ct. 1525, 1527-28 (2020)

(Alito, J., dissenting).

While the law barred

petitioners from transporting their arms in the past,

they sought only prospective relief.

The Court

dismissed the case as moot because petitioners did not

seek even nominal damages, which multiple members

of the Court acknowledged . would have kept

petitioners* Second Amendment claims alive. Id. at

1526-27 (per curiam op.); id at 1540 (Alito, J.,

dissenting).

2. Freedom: of Speech. First Amendment cases in

which governmental ' actors unconstitutionally

abridge plaintiffs’ free-speech rights and then change

the challenged ,policies or ordinances are legion.

These cases involve plaintiffs along all points of the

political spectrum.

Start .with content-based speech restrictions, i.e.,

speech restrictions that privilege certain views or

subjects above others. State" and local governments

have targeted everything from panhandling to

erecting yard signs supporting George W. Bush. Some

universities have disfavored pro-life student groups’

messages by forcing those groups alone to post signs

in deserted areas; other universities have disrupted

student groups’ programming by citing fears of

offending Christian students. Localities have tried to

silence residents’ attempts to place ‘‘For Sale” signs in

their parked vehicles because of .opposition' to

encouraging that kind of commercial activity. A pro

life protestor of Planned Parenthood, a prisoner trying

to send his mother drawings featuring partially nude

women and marijuana leaves, and a volunteer trying

to register voters all alleged differential treatment at

the hands of governmental actors solely because of the

content of their: speech. The plaintiffs in these cases

hailed from all over the country and all walks of life,

but all sued to vindicate the same principles1 the

unlawful prior restraints—whether those plaintiffs

are

strip-club

owners

challenging licensing

requirements, animal-rights activists denied a timely

decision on their permit for a planned protest, or

university students and faculty required by university

policy to pre-clear communications with prospective

student-athletes. In one instance, an elementary

school mandated that students submit for prior

approval materials they wanted to distribute,

including Christian students who sought to give out

“pencils inscribed with ‘Jesus is the reason for the

season”’ and “candy canes with cards describing their

Christian origin.”3

___In all of those cases, when challenged]

governmental actors tried to change their policies in

order to moot the litigation.] Plaintiffs challenging

such prior restraints suffer real but difficult-to*

quantify harms, making compensatory damages an

inapt remedy. As the Seventh Circuit explained, “this

is exactly the situation for which nominal damages are

designed.”

Six Star Holdings, LLC v. City of

Milwaukee, 821 F.3d 795, 805 (7th Cir. 2016).

Without nominal damages, plaintiffs would obtain no

remedies for the difficult-to-value harms they already

3 Six Star Holdings, LLC v. City ofMilwaukee, 821 F.3d 795, 799*

800 (7th Cir. 2016) (strip club owner challenging licensing

scheme)> Clarkson v. Town ofFlorence, 198 F. Supp. 2d 997,1016

(E.D. Wis. 2002) (similar)} Utah Animal Rights Coal. v. Salt Lake

City Corp., 371 F.3d 1248, 1250 (10th Cir. 2004) (animal-rights

activists challenging permit ordinance); Crue v. Aiken, 370 F.3d

668, 674 (7th Cir. 2004) (university faculty seeking to share

concerns about university mascot, “Chief IUiniwek”); Morgan v.

Plano Indep. Sch. Dist, 589 F.3d 740, 748 (5th Cir. 2009)

(Christian students barred horn distributing pencils, candy

canes, "tickets to a church's religious musical programs, and

tickets to a dramatic Christian play”); accord Miller v. City of

Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010) (anti-spending

group seeking to hold political press conference in city hall).

suffered, and governments could re-enact similar,

unconstitutional policies with impunity.

3. Free Exercise and Establishment Clauses.

Both religious and secular plaintiffs often challenge

government policies under the First Amendment,

bringing lawsuits alleging violations of the Free

Exercise Clause, the Establishment Clause, the

Religious Freedom Restoration Act, and the Religious

Land Use and Institutionalized Persons Act. In these

contexts, too, governments often respond by amending

their policies and arguing the challenges are moot. As

in the free*speech context, nominal damages allow

plaintiffs to remedy the intangible harms they already

suffered—whether those harms involved being

compelled to refrain from practicing their faiths, or

being subjected to impermissible state support for

religion.

For instance, prisons have refused to

accommodate prisoners who seek kosher diets

consistent with their religious beliefs. Another prison

rejected an inmate’s request for non-meat meals on

Fridays and during Lent, prompting the inmate to

abstain from eating the meat in his standard prison

meals, and his weight “dropped as low as 119 pounds.”

When the prison attempted to moot the case three

years into the litigation by offering the individual

inmate a diet compatible with his faith, the Seventh

Circuit refused to dismiss the case. Putting a price on

having to “forego adequate nutrition on Fridays and

for the forty days of Lent in order to comply with his

sincerely held religious beliefs” might be

challenging—but there was still “a substantial burden

on his religious exercise,” and damages claim for that

retrospective harm kept the case alive.4

4 Nelson v. Miller, 570 F.3d 868, 880, 882 (7th Cir. 2009)

(Catholic inmate seeking non-meat meals on Fridays and during

Lent)> see also Rich v. Fla. Dep't of Corr., 716 F.3d 525, 532 (llth

Similarly, in the Establishment Clause context,

plaintiffs in Slidell, Louisiana, challenged a display in

the foyer of the City Court that depicted “Jesus Christ

presenting the New Testament of the Bible,” with

large wording underneath reading “To Know Peace,

Obey These Laws.” Doe v. Par. ofSt Tammany,; 2008

WL 1774165, at *1 (E.D. La. Apr. 16, 2008). Shortly

thereafter, the government “changed the display5 to

contain “various historical lawgivers” alongside Jesus

Christ, and argued that the suit was moot. Id. But by

then, the plaintiffs had already suffered the harms

associated with the unwanted religious display.

Nominal damages again allowed plaintiffs to vindicate

that difficult-to-value harm. Id. at *5.

4. Fourth Amendment. Likewise, when official

search-and-seizure policies violate plaintiffs’ Fourth

Amendment rights, nominal damages prevent

governments from mooting the claims by changing or

repealing the challenged policies, and enable

plaintiffs to seek redress for past harms. The city of

Flint, Michigan, subjected rental properties to its

Comprehensive Rental Inspection Code, which

allowed city inspectors to enter rental units without

permission and penalized property owners who

refused inspections.

Karter Landon, one such

property owner, sued and alleged that the Code

unconstitutionally subjected him to warrantless

searches under the threat of fines and other penalties

if he did not consent. The city responded by amending

its Code and argued that Landon’s case was moot.

The harm from an unconstitutional search does not

lend itself to ready monetary valuations. But because

Landon sought “nominal damages as a remedy for

past wrongs,” the district court allowed his claim to go

forward. Landon v. City ofFlint, 2017 WL 2806817,

at *3, *6 (E.D. Mich. Apr. 21, 2017), report and

Cir. 2013) (prisoner seeking kosher diet); Davis & Reaves, supra,

at 329 (collecting similar cases).

recommendation adopted, 2017 WL 2798414 (E.D.

Mich. June 27, 2017).

5. Due Process Clause. Allowing governments to

moot cases despite nominal-damages claims would

also prevent plaintiffs from remedying due-process

harms that government policies inflicted. As with

other constitutional claims, the government’s

violation of a citizen’s procedural due-process rights

involves real, past injuries that are difficult to

quantify. After the City of Costa Mesa towed Sidney

Soffer’s car and he was “[ulnwilling or unable to pay

the towing fee,” he sued the city for failing to provide

an adequate hearing to challenge the city’s decision to

tow his car. The city amended the relevant ordinance,

but Soffer’s due-process claim survived and ultimately

succeeded. The court awarded nominal damages of

one dollar “IbJecause due process rights are

‘absolute,’” and the prior ordinance violated his right

to adequate procedural protections. Softer v. Costa

Mesa, 607 F. Supp. 975, 977 (C.D. Cal. 1985), affd798

F.2d 361 (9th Cir. 1986).5

III. Nominal Damages Allow Plaintiffs to Remedy

Retrospective Harms in Cases That Become

Moot on Other Grounds

Because nominal damages remedy retrospective

but difficult-to-quantify harms, nominal-damages

claims also preserve plaintiffs’ ability to vindicate

constitutional rights in cases were other intervening

developments moot plaintiffs’ claims for prospective

relief.

5 Similarly, nominal damages allow inmates an opportunity to

vindicate their procedural due-process rights in disciplinary

proceedings, even when prisons seek to moot their claims by

removing the infractions from the inmates’ records. Penwell v.

Holtgeerts, 295 F. App’x

• Take cases that students bring to challenge school

policies.

Those policies often outlast individual

students, who graduate by the time their cases work

their way through the courts. Leaving the educational

environment obviates any need for prospective relief.

And the mootness exception for violations “capable of

repetition but evading review” does not apply, because

that doctrine requires “a reasonable expectation that

the same complaining party would b? subjected to the

same action again.” Lewis v. Conti Bank Corp., 494

U.S. 472, 481 (1990).

But the students have nonetheless suffered

wrongs in the pa6t that remain unredressed. For

instance, in Griffith v. Butte School District No. 1, the

school barred valedictorian Renee Griffith from

speaking at graduation because she refused to remove

references to Jesus Christ from her graduation

speech. 244 P.3d 321, 328 (Mont. 2010) (looking to

federal law as instructive on mootness). Graduation

freed her from that restriction, but did nothing to

remedy the harm she suffered by having to forgo

speech. Id. at 200. And in Grimm v. Gloucester

County School Board, — F.3d 2020 WL 5034430 (4th

Cir. Aug. 26, 2020), Gavin Grimm challenged a school

policy requiring students to use restrooms matching

their “biological

877, 878 (9th Cir. 2008); Jones v. Clemente, 2006 WL

782474, at *2 (D.

Or. Mar. 27, 2006).

gender” under the Equal Protection Clause and Title

IX, but graduated before the courts resolved his suit.

Nominal damages again were the only way to

recognize and remedy Grimm’s harms. Id. at *11 &

n.6. And in Mellen v. Bunting, a group of cadets

brought an Establishment Clause challenge to the

mandatory supper prayer at the Virginia Military

Institute. 327 F.3d 355, 362-63 (4th Cir. 2003). Their

graduation did not eliminate the harm they

experienced from the “unconstitutional toll” the

supper prayer placed “on the consciences of religious

objectors.” Id. at 371. In all these cases, pleading

nominal damages allowed students to'hold schools

accountable for the harms that school policies imposed

and laid down markers for schools about what the law

requires.

Nominal damages play a similar role in cases

involving pretrial detainees and prisoners. Their

release or transfer to another facility generally moots

their claims for prospective relief. Further, because of

the limitations on compensatory damages claims in 42

U.S.C. § 1997e(e), nominal damages are often the only

relief prisoners can seek to vindicate their

constitutional rights.

Indeed, the availability of nominal damages often

makes all the difference for prisoners to obtain some

recognition that they suffered a constitutional wrong.

In Jessamy v. Ehxen,, 153 F. Supp. 2d 398, 403

(S.D.N.Y. 2001), for example, pretrial detainees

alleged that corrections officers “punched, kicked,

stomped upon, dragged and otherwise physically

abused” them. Prospective relief was no help; the

prison had already released the detainees.

Compensatory damages would have been hard to

establish; while one of the plaintiffs alleged emotional

distress, he stipulated that he would “offer no evidence

of physical injury at trial.” Pleading nominal damages

thus gave the detainees an opportunity to challenge

the injuries they had already suffered, without having

to translate that harm into dollars-and'cents figures

for particular injuries. IdA accord Doe v. Delie, 257

F.3d 309, 314 (3d Cir. 2001) (HIV*positive inmate’s

acquittal on retrial and release mooted claims for

prospective relief in case alleging violations of right to

medical privacy, but not nominal and punitivedamages claims for loss of privacy).

In sum, civil-rights plaintiffs in myriad

constitutional contexts, and of all political persuasions

and beliefs, share one common thread: they have

suffered real harms that transcend easy price tags.

Nominal damages are often the only avenue available

to remedy that wrong. And as a form of retrospective

relief, nominal damages allow these plaintiffs to

proceed when governments change their policies going

forward but have not redressed a past wrong, or when

other intervening events make prospective relief

unavailable but leave a past wrong unremedied. The

Ninth Circuit’s outlier rule would upset the

longstanding role that nominal damages have played

in providing concrete redress for past constitutional

injuries, and would enable governmental actors to

evade accountability for their unconstitutional

policies.

CONCLUSION

The judgment of the United States Court of

Appeals for the Ninth Circuit should be reversed.

“I declare (or certify, verify, or state) under penalty

of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on (8/6/2021).

(V/Cedle A. Brown)”.

Respectfully submitted,

Cecile A. Brown

Appellant/Petitioner,

Pro Se ofRecord

3222 Violet St Apt. A

Alexandria, LA 71301

(318) 528-o335

browncecile@yahoo. com

August 6, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.