Argument evaluation: Justices weigh mootness after change in authorities coverage in circumstances in search of nominal damages

The Supreme Court heard a hearing on Tuesday in the case of a Georgia student who was prevented from distributing religious literature and speaking about his beliefs on his public college campus. The student, Chike Uzuegbunam, argued that the college’s guidelines violated the first change, but shortly after the lawsuit was filed, the college changed its guidelines to allow students to generally speak anywhere on campus without permission. The question before the court on Tuesday in Uzuegbunam against Preczewski was whether the lawsuit can still go on as Uzuegbunam is seeking only symbolic damages, or whether the case is instead contentious – that is, no more living controversy. During the little over 90-minute debate, the judges had difficult questions for both sides, making it difficult to predict how they might ultimately rule.

The lawsuit began after Uzuegbunam, an Evangelical Christian, distributed religious literature outside the campus library at Georgia Gwinnett College, a public college in suburban Atlanta. A police officer on campus told Uzuegbunam that he could only distribute literature if he had previously reserved one of two designated areas. When Uzuegbunam later booked one of these zones to speak and exchange literature, another police officer told them that he was breaking the college’s prohibition on “disorderly behavior” because his speech bothered others.

A federal district court dismissed Uzuegbunam’s lawsuit after the college changed its policies and Uzuegbunam (as well as another student who had joined the lawsuit, Joseph Bradford) graduated. Although Uzuegbunam had sought nominal damages – that is, symbolic damages such as a dollar – in addition to demanding an order banning the college from enforcing its now-repealed policies, the court found that the nominal damages were insufficient to permit this Uzuegbunam’s case continues. After the US Court of Appeals for the 11th Circuit upheld this decision, Uzuegbunam went to the Supreme Court, which agreed last summer to consider.

Attorney Kristen Wagoner represented the students and told judges that when college officials prevented Uzuegbunam and Bradford from sharing their beliefs, they caused “concrete injuries” that could be remedied by nominal harm. Those damages, regardless of the label, would put money in the pockets of students, Wagoner said, and therefore meet the constitutional requirement that federal courts be limited to settling active disputes with real interests.

Despite Waggoner’s claims, the judges have spent much of the argument trying to determine for themselves what role nominal damage actually plays in a lawsuit. Chief Justice John Roberts was the first to address this issue, telling Wagoner that the only real-world relief they and their clients sought was a “statement that you are right,” with the nominal damage – one dollar – a symbol of this justification served as a replacement.

Wagoner pushed back, emphasizing that the nominal damage was not only an explanation of the defendant’s wrongdoing, but also an award for the plaintiff’s previous injury. But Justice Samuel Alito repeated Roberts’ question a few minutes later, asking her to explain why nominal damage justified a previous violation of a constitutional law. If nominal damages only contain a statement that there has been a violation of the law, according to Alito, this sounds like an opinion that the constitution does not allow the courts to use.

Judge Neil Gorsuch suggested to Wagoner that most lawsuits could still go ahead even if a petition for nominal damages alone was not enough to keep a case alive. That’s because everyone agrees that even small amounts of damages – which provide compensation for a measurable loss – are enough to prevent a case from being up for discussion. When Wagoner responded that victims of government misconduct may not be able to demonstrate any damage other than nominal damage, Gorsuch noted that such plaintiffs may be able to get their bus fare or compensation back for the time it took them to get to the location You were injured. We have “very resourceful attorneys with resourceful damage theories,” Gorsuch quipped.

Judge Elena Kagan had similar questions for Hashim Mooppan, the advisor to the US Attorney General, who argued on behalf of the federal government in support of the students. Kagan acknowledged that the students and the federal government “had a lot of history on your side”, but she didn’t seem to consider this particularly relevant to the world today. We are now monetizing claims that are constantly difficult to quantify, Kagan emphasized, for example in the form of claims due to emotional distress. But what the students really want in this case, Kagan continued, is justification – which for constitutional purposes is not a case or controversy.

Andrew Pinson, the Georgia attorney general, also faced difficult questions about the importance of nominal damage, and more specifically the difference between nominal damage and small monetary damages. Roberts asked him about a scenario in which Congress passed law and put $ 1 in damages to plaintiffs who prevailed in private litigation to enforce the law.

Pinson responded that for a dollar award, the question of whether the lawsuit could proceed would depend on redress for the violation. If Congress really only allowed the courts to give opinions, it said, “I think the court would have to look carefully.” However, when asked by Roberts, he conceded that an award for the cost of the gas required to drive to campus would not be all too trivial as claims for damages, regardless of the amount, are recognized as relief for a past injury. “

Alito pressed Pinson and asked if a $ 10 legal damages award was big enough to move the lawsuit forward. Pinson responded that if the award was compensation for “hard-to-prove injuries” it would bring the kind of relief that would allow the lawsuit to continue.

Kagan brought up the case of music superstar Taylor Swift, who was the plaintiff in what Kagan called “the most famous nominal damage claim I have known lately.” Swift filed a sexual assault case against a radio host who was only looking for a dollar, Kagan noted, because she said she didn’t want his money, just a dollar to portray what she and others had been through. There was “undeniable” physical harm, Kagan pointed out, but Swift only asked for “that one dollar to say she was injured.”

Pinson defied characterizing Swift’s case as one seeking nominal damages, arguing that Swift “clearly alleged indemnifiable injuries”. If so, Kagan countered: “Why isn’t it the same?”

When Judge Amy Coney Barrett suggested that Swift really wanted justification, she asked if the courts should examine the motivation for a lawsuit so that nominal damages “can actually be compensated for one person but not another?” Barrett noted that under a number of consumer protection laws, such as the Telephone Consumer Protection Act and the Fair Collection Practices Act, the legal harm is relatively minor, but the courts can order defendants to pay the plaintiff’s legal fees. These laws deter malefactors in the regulated industries and allow consumers to defend their rights. If Congress reduced the damages available for violating these laws to one dollar, would it question whether lawsuits brought under these laws are constitutional? When Pinson appeared to agree that these lawsuits are still constitutional, Barrett retorted, “So you’re admitting the damages when you get some annoying text, but not because your First Amendment rights have been violated?”

Judge Brett Kavanaugh (as well as Judge Sonia Sotomayor) focused on the federal government’s suggestion that the defendant may end the lawsuit by accepting entry of a nominal price if a plaintiff seeks only nominal damages for past behavior, without damages to decide on the merits of the claims made against him. Such a move could minimize the practical ramifications of a Supreme Court ruling in favor of the students, as their claims may not move forward anyway. What is really at stake in such cases, Kavanaugh suggested, is not the award of nominal damages, but concern about the award of legal fees. According to Kavanaugh, if a plaintiff filed a lawsuit and the defendant changed the contested policy, the plaintiff would not be eligible for legal fees if the lawsuit only sought an injunction – that is, an order that prevented the defendant from acting in the future .

Mooppan noted that the defendants may not want to pay even a dollar in nominal damages because they may not want to admit they did anything wrong, but stressed (in response to a question from Judge Clarence Thomas) that the charges are in one Case concern only nominal damages would probably be minimal.

Pinson alleged that the situation could be more complicated than if the defendant only paid a dollar or so in nominal damages to end a lawsuit. A default judgment, he argued, would be treated as the final solution to the case. Furthermore, he added that in a case like this, which involves officials sued on their individual capacity, it may not be fair to hold them liable in order to avoid lengthy litigation.

In one of her questions to Mooppan, Barrett reminded her colleagues that the potential impact of their decision goes beyond the first change. In challenging New York’s ban on the transportation of weapons outside of the city last term, the judges ruled the case was contentious because the city had changed its policy. If the challengers had asked for nominal damages, she asked, would the decision have been the other way around?

Yes, replied Mooppan, because it would have been a live claim. When the judges sent the case back to the lower court in New York last year, Alito wrote – in a dissent in which Thomas and Gorsuch also participated -: “A claim for nominal damages excludes disputes.” After the argument on Tuesday was not very clear whether there were at least five votes for this proposal; We’ll know the answer by summer.

This article was originally published by Howe on the Court.

Posted in Uzuegbunam v. Preczewski, Featured, Merits Cases

Recommended citation:
Amy Howe, Argument Analysis: Judges consider dispute after changing government policy in cases where nominal damages are sought.
SCOTUSblog (January 12, 2021, 7:46 p.m.), – seeking-nominal-damage /

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