Jurist: The Supreme Court and the importance of nominal damages

November 13, 2020 | By DEBORAH LA FETRA
scotus 2

When attorneys file legal complaints in court, they generally request specific relief for the plaintiff, such as a declaration that government action was unconstitutional, or an injunction, or compensatory damages. Then, just in case they forgot something, they add a catch-all request asking for “any such additional relief as would be just and proper.” While legal documents have a terrible reputation for redundant, stilted language, this catch-all request for relief is not mere boilerplate.

Federal Rule of Civil Procedure 54 says that final judgments “should grant the relief to which each party is entitled.” The rule is not limited to relief that is specifically requested in the complaint;—it is specifically designed to cover relief that is not explicitly pled. It is intended to protect plaintiffs from an oversight that might otherwise deprive them of a deserved recovery and to ensure a just result in light of the circumstances of the case.

All sorts of relief can be recovered under a catch-all request and Rule 54: specific performance of a contract, prejudgment interest, damages, attorneys’ fees, and so on. And of particular interest to civil rights attorneys, the catch-all may also include nominal damages—that symbolic vindication of constitutional rights.

In Uzuegbunam v. Preczewski, a case the US Supreme Court will decide this year, the role of nominal damages takes center stage. In that case, two students were unconstitutionally prevented from speaking on a public college campus. The college changed its policy before the court ruled, and the court dismissed the students’ case as moot despite their request for nominal damages as a remedy for the past, completed constitutional injury they suffered. The question before the Court is whether an explicit claim for nominal damages—without a claim for compensatory damages—prevents a case being tossed out of court as moot.

A new petition for writ of certiorari recently filed in the Supreme Court asks a related question with a Rule 54 twist: Can a constitutional case be mooted by a government’s change in policy if the plaintiffs implicitly sought nominal damages via the catch-all request for relief? In cases that arise in Circuits that consider nominal damages mandatory for proven constitutional violations, the answer should be no. But the Ninth Circuit recently dismissed just such a case.

Two years ago, Seattle passed a law banning the use of rent-bidding websites to give it time to study whether those websites had an adverse effect on affordable housing. Rentberry, a rent-bidding website, and Delaney Wysingle, who owns a single-family residence for rent, sued the city for violating the First Amendment rights of landlords and potential tenants to communicate using the website.

On the eve of oral argument in the Ninth Circuit Court of Appeals, the city belatedly realized that it couldn’t study something it had already banned. It repealed the ban and replaced it with an ordinance ordering studies of the effect of rental-bidding websites on the rental housing market, with the intent of using the results to justify further regulation to limit or prohibit the use of the websites. But with the original ordinance repealed, the Ninth Court dismissed the case as moot.

The court refused to consider how declaring the case moot contradicted Circuit law holding that nominal damages are mandatory relief for successful civil rights plaintiffs and that the possibility of recovering nominal damages normally prevents a finding of mootness. It dismissed Rentberry’s case because the nominal damages were not explicitly sought and held that the Federal Rule of Civil Procedure 54 offered no safe harbor.

By declaring the case moot, the court deprives civil rights plaintiffs of a final judgment while allowing the governments to get away with violating constitutional rights, repeal the policy when challenged in court, and suffer no consequences. This is not how civil rights litigation is supposed to work: The government must be held liable for constitutional wrongs.

Rentberry and Wysingle were near to the finish line, ready to argue their case and receive a decision from the Ninth Circuit as to whether Seattle violated their constitutional rights. And then, suddenly, the courthouse door was slammed shut. After the Supreme Court decides whether Uzuegbunam’s explicit request for nominal damages saves the case from dismissal as moot, it should grant the Rentberry petition to consider that implicit requests for otherwise mandatory nominal damages similarly prevent dismissal for mootness.

This op-ed was originally published by Jurist on November 13, 2020.