U.S. Supreme Court Holds Nominal Damages Sufficient to Keep Suit Alive

April 13, 2021

What difference does a dollar make these days? According to the Supreme Court’s holding earlier this month Uzuegbunam v. Preczewski, the difference between continuing with your lawsuit or having it dismissed as moot.

Plaintiff Chike Uzuegbunam was a student at a community college of Georgia. He was passing out religious literature on campus when a campus police officer told him such public speech to a tiny, out-of-the-way sliver of campus was by permit only. Uzuegbunam complied, but was then told by another police officer that he could not address religious topics because it might offend or disturb bystanders. Uzuegbunam then sued, alleging violations of his First Amendment rights.

The college soon gave up trying to defend its speech restrictions, which were flagrantly unconstitutional, and changed its policy. It then argued the case was moot because the challenged policy no longer existed. Uzuegbunam responded that the case was not moot because he still had a claim for nominal damages. A lower court disagreed, dismissing the case as moot.

The Supreme Court agreed to hear the case, and many advocacy groups weighed in, often working with groups on opposite ends of the political spectrum. Oral argument suggested all of the justices were unsure how to resolve the case, and were concerned with the practical consequences of their ruling, chief among those consequences that litigants could use a claim for nominal damages as a vehicle to justify an attorneys’ fee petition, which in civil rights cases is anything but a nominal sum.

Even so, the Court ruled 8-1 in favor of the plaintiff, holding that a nominal damages claim was sufficient to keep an otherwise moot suit alive. Justice Thomas wrote the decision, while Chief Justice Roberts dissented alone, a first in his fifteen-year tenure on the Court. The majority held that the historical practice as common law was to allow a party whose rights were invaded to recover nominal damages, and that a claim for nominal damages was sufficient to satisfy the “redressability” requirements for standing. The majority added that litigants still needed to satisfy the other elements of standing. Chief Justice Roberts’ sharp dissent insisted that the majority’s ruling “turned judges into advice columnists” by requiring them to rule on policies no longer in existence simply because the plaintiff sought nominal damages.

Going forward, government bodies defending the constitutionality of their policies in court will need to account for the possibility of a nominal damages claim, and think strategically about the impact of a nominal damages claim, especially as is relates to the risk of a large attorney fee petition.

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