March 16, 2021
Uzuegbunam v. Preczewski, 592 U.S. __ (2021) (Thomas, J.).
Response by Caprice Roberts
Geo. Wash. L. Rev. On the Docket (Oct. Term 2020)
Slip Opinion | SCOTUSblog
Uzuegbunam v. Preczewski: Nominal Standing and the Lone Dissenter
Nominal damages—a civil award for a trivial amount from several pennies to a dollar—are generally not cause for celebration. After all, they are damages in name only.1 They symbolize victory2 and may serve as an anchor for an award of attorney fees, but fail to compensate for harms caused. Yet civil rights, free speech, and religious liberties advocates are likely reconsidering the impact of seeking nominal damages based on the Supreme Court’s 8-1 ruling in Uzuegbunam v. Preczewski.3 The case garners instant fame for establishing the power of nominal relief to overcome standing and mootness problems. Another reason for fame is that the case represents the first time that Chief Justice Roberts lodged a lone dissent since his tenure on the Court began in 2005.
The Court, in a majority opinion authored by Justice Thomas, revived a First Amendment challenge brought by Chike Uzuegbunam, an evangelical Christian student, against Georgia Gwinnett College. The case provided Justice Thomas an opportunity to provide a history lesson on remedies while clarifying federal court standing and mootness doctrines in a case arising from his home state of Georgia. The Court held that a request for nominal damages based on a “completed violation of a legal right” satisfies Article III’s redressability requirement.4 Justice Thomas and the majority reasoned that the remedy of nominal damages is well established in English and American law and does not require proof of actual damage or harm.
In contrast, Chief Justice Roberts grounded his lone dissent in Article III’s requirement of a live controversy and the Framers’ views on the limited role of federal courts among the three branches of government. He charged that the majority’s ruling is a “radical expansion of judicial power.”5 Properly bounded jurisdiction, according to Chief Justice Roberts, ensures that the federal judiciary does not encroach into the work of the political branches. Nominal damages neither compensate nor alter behavior; thus, to Chief Justice Roberts, they serve no remedial function and cannot save an otherwise moot claim. The dissent will contribute to Chief Justice Roberts’s legacy of articulating limits on the federal judicial role within our constitutional framework.6 This case—of all the controversial justiciability cases—seems like an odd one to warrant the Chief’s first lone dissent with conclusions not necessarily required by the Court’s precedent and an overwrought tone, however.
Key facts and lines of argument provide additional insight into this decision and the Chief Justice’s dissent. Uzuegbunam had distributed religious literature on the college campus and, after clarification, in designated areas until a campus police officer asserted that the behavior violated the college’s “disorderly conduct” ban. Uzuegbunam brought suit in federal district court and sought nominal damages, as well as declaratory and injunctive relief against unconstitutional college policies. During the case’s pendency in the trial court, the college changed its policies and Uzuegbunam graduated.7 Uzuegbunam dropped the declaratory and injunctive requests but continued to pursue nominal relief. The federal district court dismissed the suit,8 and the Eleventh Circuit affirmed the dismissal because the case no longer constituted a live controversy.9
To satisfy the justiciability requirements of Article III,10 plaintiff must possess constitutional standing by showing that plaintiff suffers an actual injury that is fairly traceable to the challenged behavior and redressable by the remedy sought.11 Justiciability doctrines also require the claim to be ripe and that it not become moot during the course of litigation. Taken together, these requirements stand for the proposition that federal courts cannot issue advisory opinions.
According to the majority opinion, the only issue in dispute was redressability because Uzuegbunam had already established actual injury and causation. For the majority, the application was straightforward under Article III standing jurisprudence, and the answer was clear: “nominal damages provide the necessary redress for a completed violation of a legal right.”12 In reviving the claim, the Court centered its analysis on whether the remedy Uzuegbunam sought (nominal damages) could “redress the constitutional violation that Uzuegbunam allege[d] occurred when campus officials enforced the speech policies against him.”13 To answer that question, the Court delved into the history of nominal damage awards linking Supreme Court jurisprudence to England and Justice Story’s declarations.14 Justice Thomas maintained that precedent demonstrates “the prevailing rule” to be that the invasion of rights entitles a party to “always recover nominal damages without furnishing any evidence of actual damage.”15 Chief Justice Roberts, however, questioned the framing and the conclusion given the indeterminacy of the sources.16 Speaking for the majority, Justice Thomas admitted that the prevailing rule has not been universally followed, but asserted that the evidence is well established as well as logical. The Court explained that this rule ensured that “the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.”17 Plaintiff need not fail to prove compensatory harm and then fall back to nominal damages; rather, the Court characterized nominal damages in such cases as an entitlement and a form of redress rather than a byproduct.
The majority opinion drew a lone dissenter for keeping an otherwise moot case alive where there was no effective relief the federal court could grant. In dissent, Chief Justice Roberts asserted that the majority failed to value Article III’s case or controversy requirements and placed federal courts in a perilous position by forcing them to render prohibited advisory opinions every time a plaintiff tacks on a demand for one dollar.
With only nominal damages sought for an already changed policy, as here, there is nothing for the court to remedy, and therefore no occasion for judicial power.
Long ago, the Supreme Court invalidated presumed general damages to compensate for the inherent value of the constitutional rights.18 Could the Uzuegbunam decision signal deeper respect for dignitary harms? Ultimately, the Court enshrines plaintiff’s request for nominal damages as satisfying the redressability requirement of standing where the claim is based on a completed violation of a legal right. Chief Justice Roberts fears the rise of constitutional claims for one dollar binding federal courts to keep jurisdiction even where defendants have changed the challenged policies,19 and expressed concern that the Court has turned federal judges into “advice columnists.”20 The majority reiterated that plaintiffs must still satisfy Article III’s actual injury and traceability prongs. Without a doubt, civil rights lawyers have every reason to add a demand for nominal relief. And, it seems, the Court has reconceptualized the redressability prong to acknowledge that intangibility of constitutional harms should not lessen the import of the claim. It will be interesting to see whether this pathway: (i) deters defendants from changing challenged policies,21 (ii) stimulates more constitutional claims for nominal damages, or (iii) results in fewer dismissals on redressability grounds. For now, it is a victory for the law of remedies in the protection of less pecuniary harms where the violation is far from trivial.
Caprice L. Roberts is a scholar of both the judicial role and the law of remedies. Professor Roberts is the co-author of the seminal treatise Dobbs and Roberts’s Law of Remedies, the 9th edition of a leading Remedies casebook with Doug Rendleman, and a Federal Courts casebook with Michael Allen and Michael Finch. The United States Supreme Court cited Professor Roberts for accurately predicting novel application of unjust enrichment principles to contract law.
Professor Roberts is an elected member of the American Law Institute and served on the Consultative Group for the Restatement (Third) of Restitution and Unjust Enrichment. She is the Chair of the AALS Remedies Section and the Deputy Executive Director and Vice-Chair of Programming for the Southeastern Association of Law Schools. She is a Remedies Section Editor for JOTWELL and periodic guest blogger at PrawfsBlawg.
1 Dan B. Dobbs & Caprice L. Roberts, Law of Remedies: Damages—Equity—Restitution § 3.3(2), at 225 (West 3d ed. 2018). A claimant may request many other forms of monetary relief. Typically, plaintiff seeks compensatory damages, which fully indemnifies plaintiff for legally recognized losses. Id. § 3.1, at 215. A claim for consequential damages such as lost profits may fail proof thresholds despite establishing defendant’s liability, however. In such cases, plaintiff garners a nominal damage award, typically in such amounts as one dollar. In Uzuegbunam, the suit did not include a request for compensatory damages.
2 Nominal damages declare and vindicate without requiring proof of pecuniary harm. See Carey v. Phiphus, 435 U.S. 247 (1978) (awarding nominal damages to vindicate a violation of procedural due process rights); see also Jean C. Love, Damages: A Remedy for the Violation of Constitutional Rights, 67 Calif. L. Rev. 1242, 1243–44 (1979) (examining vindication of constitutional rights in the wake of Carey v. Phiphus, and advocating “judicial or legislative recognition of presumed compensatory damages for violations of constitutional rights that protect intangible, dignitary interests”).
3 No. 19-968 (U.S. Mar. 8, 2021).
4 Uzuegbunam, slip op. at 11.
5 Uzuegbunam, slip op. at 8 (Roberts, C.J., dissenting).
6 See, e.g., King v. Burwell, 576 U.S. 473, 498 (2015) (Roberts, C.J.) (declaring that “the law rests with those chosen by the people” in a democracy and therefore the Court in its confined Marbury capacity “to say what the law is” must “respect the role of the Legislature, and take care not to undo what it has done”); Hollingsworth v. Perry, 570 U.S. 693, 700 (2013) (Roberts, C.J.) (finding a lack of standing and thus the Court lacking power to hear the case on the merits: “This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”); Boumediene v. Bush, 553 U.S. 723, 826 (2008) (Roberts, C.J., dissenting) (criticizing the majority’s extension of constitutional habeas rights to Guantánamo detainees by asking “who has won,” and answering with a long list of nonwinners, e.g., “certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges”). When necessary, however, Chief Justice Roberts has vigorously defended federal judicial power from legislative encroachment on separation of powers grounds. See, e.g., Bank Markazi v. Peterson, 136 S. Ct. 1310, 1332 (2016) (Roberts, C.J., dissenting) (“The central pillar of judicial independence was Article III itself, which vested ‘[t]he judicial Power of the United States’ in ‘one supreme Court’ and such ‘inferior Courts’ as might be established. The judicial power was to be the Judiciary’s alone.”).
7 Joseph Bradford, who had joined the litigation, also graduated.
8 Uzuegbunaum v. Preczewski, 378 F. Supp. 3d 1195, 1209 (N.D. Ga. 2018).
9 Uzuegbunaum v. Preczewski, 81 Fed. Appx. 824, 833 (11th Cir. 2019).
10 U.S. Const. art. III (defining federal judicial power as extending to certain “cases” and “controversies”).
11 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The injury-in-fact requirement is not without critics. See, e.g., F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275 (2008) (arguing that the injury-in-fact requirement should not restrict standing in private rights cases).
12 Uzuegbunam, slip op. at 12.
13 Id. at 3–4.
14 The majority opinion noted that Justice Story, in Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508–09 (No. 17,322) (CC Me. 1838), applied reasoning from the English courts to declare that a claimant whose legal rights have been violated “is entitled to a verdict for nominal damages” whenever “no other [kind of damages] be proved,” even with “no farther inquiry than whether there has been the violation of a right.” Id. at 6.
15 Id. at 7.
16 Id. at 8 (Roberts, C.J., dissenting).
17 Id. at 8 (majority opinion).
18 See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306–07 (1986) (rejecting the plaintiffs’ demand for presumed general damages); Carey v. Piphus, 435 U.S. 247, 264 (1978) (holding that presumed damages are not recoverable for violations of procedural due process rights). But cf. Jean C. Love, Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective Justice Perspective, 49 Wash. & Lee L. Rev. 67 (1992) (arguing that the reasoning of Carey and Stachura leave space for a future iteration of the Court to recognize presumed general damages as a remedy in constitutional tort disputes).
19 Justice Kavanaugh joined the majority opinion, but also authored a separate one-paragraph concurrence to agree with Chief Justice Roberts and the Solicitor General on one point: a defendant’s acceptance of a nominal damages judgement should end the litigation without requiring resolution of the merits. Uzuegbunam, slip op. at 1 (Kavanaugh, J., concurring).
20 Id. at 4 (Roberts, C.J., dissenting).
21 Chief Justice Roberts argued that defendants should be able to render a case moot by simply giving plaintiff the nominal damages amount or filing an offer of (nominal) judgment under Federal Rule of Civil Procedure 68(d). Id. at 11. If possible, this maneuver could save the expense of further litigation and avoid the potential for an adverse judgment.
Recommended Citation
Caprice Roberts, Response, Uzuegbunam v. Preczewski: Nominal Standing and the Lone Dissenter, Geo. Wash. L. Rev. On the Docket (Mar. 12, 2021), https://www.gwlr.org/uzuegbunam-v-preczewski-nominal-standing-and-the-lone-dissenter.
