Maura B. Grealish A Dollar For Your Thoughts - Determining Whether Nominal Damages

Fordham Law Review
Volume 87 Issue 2 Article 8
2018
A Dollar for Your Thoughts: Determining Whether Nominal

Damages Prevent an Otherwise Moot Case from Being an
Advisory Opinion
Maura B. Grealish
Fordham University School of Law
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Part of the Civil Law Commons, and the Jurisprudence Commons
Recommended Citation
Maura B. Grealish, A Dollar for Your Thoughts: Determining Whether Nominal Damages Prevent an
Otherwise Moot Case from Being an Advisory Opinion, 87 Fordham L. Rev. 733 (2018).
Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss2/8
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A DOLLAR FOR YOUR THOUGHTS:
DETERMINING WHETHER NOMINAL DAMAGES
PREVENT AN OTHERWISE MOOT CASE FROM
BEING AN ADVISORY OPINION
Maura B. Grealish*
This Note examines whether nominal damages should sustain an otherwise

moot constitutional claim. A majority of circuit courts have held that a lone
claim for nominal damages is sufficient. A minority of circuit courts have
determined that nominal damages are insufficient because there is no
practical effect in determining such a case. The courts in the minority
analogize nominal damages to declaratory judgments and justify their
rulings on the basis of judicial economy. This Note proposes that the
minority rule is impermissible under current precedent from the U.S.
Supreme Court. However, this Note also proposes that the majority rule be
adjusted slightly to address the concerns and criticisms of the minority rule.
This Note argues that courts should scrutinize the lone claim for nominal
damages and require that plaintiffs allege a specific incident of constitutional
deprivation to ensure that there is an ongoing case and controversy. Finally,
this Note suggests that the Supreme Court provide more guidance to federal
courts on the doctrine of mootness.
INTRODUCTION.................................................................................. 734
I. AN OVERVIEW OF REMEDIES AND FEDERAL JURISDICTION ......... 736
A. Remedies ........................................................................... 736
1. Compensatory Damages ............................................ 736
2. Injunctive and Declaratory Relief .............................. 737
3. Nominal Damages: Why Bother Suing for One
Dollar? ....................................................................... 739
4. Nominal Damages as a Constitutional Remedy ......... 741
* J.D. Candidate, 2019, Fordham University School of Law; M.A., 2013, Erasmus University
Rotterdam; B.S., 2011, Northeastern University. Thank you to Professor Joseph Landau for
his guidance and the editors and staff of the Fordham Law Review for their thoughtful
feedback. I would also like to thank my friends and family, but especially my parents, Mary
and Jim Grealish, for their constant love, support and encouragement.
733
734 FORDHAM LAW REVIEW [Vol. 87
B. Determining Federal Jurisdiction: What Is a Proper

Dispute? .......................................................................... 742
1. Overview of Federal Jurisdiction ............................... 742
2. If There Is No Dispute—Your Case Is Moot!............ 743
a. Beyond Article III: The Unclear Boundary of
Prudential Mootness........................................... 745
b. Mootness Exceptions: Illuminating the
Prudential Aspects of Mootness ......................... 746
II. WHAT IS A SUFFICIENT DISPUTE? ............................................... 748
A. Majority Rule: Nominal Damages Are Always
Sufficient ......................................................................... 749
B. Minority Rule: A Functionalist Approach ....................... 751
1. Flexible Functionalist Approach ................................ 751
2. Bright-Line Functionalist Approach .......................... 755
3. Prudential and Judicial Economy Considerations ...... 756
III. BALANCING JUDICIAL ECONOMY AND VINDICATING
CONSTITUTIONAL RIGHTS ...................................................... 758
A. The Minority Rule Is Overbroad and Impermissible ........ 758
B. Taking a Closer Look ....................................................... 759
1. This Flexible Test Is a More Balanced Approach
Than the Minority and Majority Rules ...................... 760
2. A Closer Look Is Permissible Under Supreme Court
Precedent ................................................................... 762
C. The Supreme Court Should Clarify the Distinction
Between Prudential and Constitutional Mootness.......... 763
CONCLUSION ..................................................................................... 766
INTRODUCTION
In a claim for nominal damages,1 the value of a dollar is priceless.
Litigation will likely cost hundreds of thousands of dollars and require the
dedication of precious judicial resources.2 But to the plaintiff, the dollar has
no monetary value; rather, it is a symbolic gesture that society values his or
her absolute rights, such as constitutional rights.3 Because nominal damages
may be sought when there is no other available remedy, they provide
plaintiffs the opportunity to request a judicial check on executive and
1. Nominal damages are a trivial sum, such as one dollar, that is awarded to the plaintiff
when the defendant has violated the plaintiff’s legal rights but the plaintiff is unable to prove
damages under another measure. Tatum v. Morton, 386 F. Supp. 1308, 1313 (D.D.C. 1974);
DAN B. DOBBS & CAPRICE L. ROBERTS, LAW OF REMEDIES 225 (3d ed. 2018).
2. See generally EMERY G. LEE III & THOMAS E. WILLGING, FED. JUDICIAL CTR.,
LITIGATION COSTS IN CIVIL CASES: MULTIVARIATE ANALYSIS (2010),
https://www.fjc.gov/sites/default/files/2012/CostCiv1.pdf [https://perma.cc/WM3B-BW7Q]
(presenting a multivariate analysis of litigation costs in 2008).
3. See infra notes 40–47 and accompanying text.
2018] A DOLLAR FOR YOUR THOUGHTS 735
legislative power. However, the judiciary does not have unlimited power and
must avoid issuing impermissible advisory opinions.4 When a plaintiff
requests only nominal damages, the judiciary is in a precarious position and
must balance the vindication of absolute rights, the risk of running afoul of
its constitutionally limited powers, and concerns about its limited resources.5
The U.S. Supreme Court has not yet addressed whether a sole remaining
claim for nominal damages can save an otherwise moot constitutional claim.6
This issue may arise when the cause for a plaintiff’s complaint is no longer
an ongoing issue, such as where a challenged statute is repealed.7 Many
federal appellate courts have considered this issue, but they have not agreed
on how to resolve it. A majority of circuit courts have held that nominal
damages will prevent a moot constitutional claim from being dismissed.8
Recently, a small number of courts have adopted an opposing rule, which
would potentially bar plaintiffs from obtaining vindication for violations of
their constitutional rights.9
There are two apparent reasons this conflict has developed. First, there are
differing interpretations of nominal damages: they may be seen either as a
retrospective remedy to vindicate constitutional deprivations10 or merely as
a vehicle for declaratory judgments.11 Second, this conflict likely developed
because the Supreme Court has failed to clearly define the boundary between
prudential and constitutional mootness.12
This Note argues that nominal damages are more than just a vehicle for
declaratory judgments due to their special purpose in constitutional law.13
This Note proposes a flexible standard whereby the courts should take a
second look to scrutinize claims for nominal damages to ensure they are
sufficiently pled.14 This standard should be applied in determining whether
a claim for nominal damages may stand and adjusts the majority rule to
address the legitimate concerns of the courts that apply the minority rule.15
4. See infra note 75 and accompanying text.

5. See Daniel Harris Brean, Ending Unreasonable Royalties: Why Nominal Damages
Are Adequate to Compensate Patent Assertion Entities for Infringement, 39 VT. L. REV. 867,
880 n.36 (2015).
6. See Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1265 (10th Cir.
2004) (McConnell, J., concurring).
7. Id.
8. See infra note 143 (collecting pertinent circuit court cases).
9. The Eleventh and Eighth Circuits and district courts in the Seventh and First Circuits
have adopted this rule. See infra Part II.B.
10. Thomas A. Eaton & Michael L. Wells, Attorney’s Fees, Nominal Damages, and
Section 1983 Litigation, 24 WM. & MARY BILL RTS. J. 829, 876 (2016).
11. See Morrison v. Bd. of Educ., 521 F.3d 602, 610 (6th Cir. 2008); Freedom from
Religion Found., Inc. v. Franklin County, 133 F. Supp. 3d 1154, 1158 (S.D. Ind. 2015)
(“Under Seventh Circuit case law, nominal damages are more akin to declaratory relief, and
should be subject to the same justiciability principles.”).
12. See infra Part III.C.
13. See infra Part I.A.4.
14. See infra Part III.
15. See infra Part III.B.
Finally, this Note provides guidance on how the Supreme Court could clarify
the prudential and constitutional aspects of the mootness doctrine.
Part I of this Note provides the background of the relevant legal doctrines,
nominal damages, and mootness. First, it gives a brief overview of damages,
declaratory judgments, and injunctive relief. It then defines nominal
damages generally and in the context of constitutional violations. Finally,
Part I examines the requirements and purposes of mootness and discusses
perspectives on the constitutional versus prudential nature of mootness. Part
II analyzes the majority and minority rules. Part III proposes that the
majority rule should be adjusted to a flexible, yet more exacting, standard.
In conclusion, Part III then suggests that this conflict developed because of a
lack of guidance on the doctrine of mootness and outlines different models
the Supreme Court could adopt.
I. AN OVERVIEW OF REMEDIES AND FEDERAL JURISDICTION

To understand how this conflict developed, it is necessary to understand
nominal damages as a remedy as well as mootness as a requirement of federal
jurisdiction. Part I.A overviews remedies and explains the special function
of nominal damages. Part I.B gives a brief overview of federal jurisdiction
and explains mootness in depth.
A. Remedies
Lawsuits are typically brought when a plaintiff has suffered a legally
recognized harm or a violation of his or her legal rights. Once the court has
determined that the plaintiff’s substantive rights have been violated, or will
be violated, it must determine how to remedy that violation. A remedy is the
means by which rights are enforced or violations of rights are prevented,
redressed, or compensated.16 Part I.A.1 provides a brief overview of
compensatory damages.17 Part I.A.2 explains injunctive and declaratory
relief. Part I.A.3 then highlights the unique nature of nominal damages as a
remedy that combines aspects of damages and declaratory judgment. Finally,
Part I.A.4 describes the function of nominal damages in protecting
individuals’ constitutional rights.
1. Compensatory Damages
It is a “cardinal principal . . . in Anglo-American law” that damages
compensate the plaintiff for the injury caused by the defendant’s breach of
16. Remedy, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “remedy” as “[t]he
means of enforcing a right or preventing or redressing a wrong”).
17. Punitive and other types of noncompensatory damages are outside the scope of this
Note and will not be discussed. Nominal damages are discussed separately from
compensatory damages because they serve a distinct function, separate from compensation.
See infra Part I.B.
duty.18 However, different categories of damages serve distinct purposes.19

The Restatement (Second) of Torts § 901 describes the purpose of damages
as to: “(a) give compensation, indemnity or restitution for harms; (b) to
determine rights; (c) punish wrongdoers and deter wrongful conduct; and
(d) to vindicate parties and deter retaliation or violent and unlawful self-
help.”20
The purpose of compensatory damages is to make the victim whole
again—to make it as if the harm never happened.21 These damages are not
intended to be a windfall for the plaintiff, but rather to indemnify the plaintiff
for his or her harm or loss that the defendant’s wrongful conduct caused.22
Compensable harm includes not just “out-of-pocket loss and other monetary
harms, but also such injuries as ‘impairment of reputation . . . , personal
humiliation, and mental anguish and suffering.’”23
2. Injunctive and Declaratory Relief
Injunctive relief serves a different function than damages. Injunctions
cannot be ordered to redress past wrongs but rather offer prospective relief.24
They prevent future violations of law and future harm, whereas damages,
generally, compensate for harm that has already occurred. When the court
orders injunctive relief, it directs the defendant to take or to refrain from
taking some particular action.25 If the defendant fails to comply, he or she
may be held in contempt of court.26
Congress enacted the Federal Declaratory Judgment Act,27 which
authorizes courts to issue declaratory judgments, as an alternative remedy to
injunctive relief.28 Congress intended for plaintiffs to seek declaratory relief
18. 4 FOWLER V. HARPER ET AL., HARPER, JAMES AND GRAY ON TORTS § 25.1 (3d ed.
2007); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986); Carey v.
Piphus, 435 U.S. 247, 254–55 (1978); RESTATEMENT (SECOND) OF TORTS § 901(a) cmt. a,
§ 903(a) cmt. a. (AM. LAW INST. 1979).
19. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); Cooper
Indus. v. Leatherman Tool Grp. Inc., 532 U.S. 424, 432 (2001); DOBBS & ROBERTS, supra
note 1, at 3–4, 215–17 (discussing the various compensatory and noncompensatory purposes
of damages).
20. RESTATEMENT (SECOND) OF TORTS § 901(a) (AM. LAW INST. 1979).
21. See United States v. Hatahley, 257 F.2d 920, 923 (10th Cir. 1958); see also Chronister
Oil Co. v. Unocal Ref. & Mktg., 34 F.3d 462, 464 (7th Cir. 1994) (holding that the point of
compensatory damages is “to put the victim where he would have been had the breach or tort
not taken place”).
22. See State Farm, 538 U.S. at 416.
23. Stachura, 477 U.S. at 307 (alteration in original) (quoting Gertz v. Robert Welch, Inc.,
418 U.S. 323, 350 (1974)).
24. See Lacassagne v. Chapuis, 144 U.S. 119, 124 (1892).
25. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 235
(3d ed. 2002).
26. Id.
27. 28 U.S.C. § 2201 (2012).
28. See Steffel v. Thompson, 415 U.S. 452, 467 (1974) (“The express purpose of the
Federal Declaratory Judgment Act was to provide a milder alternative to the injunction
remedy.” (quoting Perez v. Ledesma, 401 U.S. 82, 111–15 (1971) (Brennan, J., concurring))).
to test the constitutionality of statutes without fear of prosecution.29 Without

this form of relief, testing such constitutionality might require the party to
violate the statute and present this argument as a defense.30 In doing so, the
plaintiff would risk losing the argument and being convicted or otherwise
penalized.
Declaratory judgments allow courts to resolve disputes through a legal
determination of parties’ rights, but the court does not enter a direct order
enforcing those rights.31 The purpose of declaratory judgments is to clarify
legal relationships before rights have been violated.32 Although there is no
direct enforceable order, declaratory relief helps resolve legal uncertainty and
prevents harm from occurring.33 For example, a potential defendant in a
patent infringement suit might seek a declaratory judgment that a patent is
invalid, unenforceable, or not infringed.34 Therefore, the parties are able to
guide their behavior depending on the judicial determination with respect to
the patent.
The Supreme Court has held that declaratory judgments are an improper
remedy in the absence of an ongoing case or controversy.35 If there is no
controversy, this remedy runs afoul of the prohibition on advisory opinions
because courts would be academically advising on the law.36 Congress did
not intend for this remedy to be used by those “merely curious or dubious as
to the true state of the law.”37 In determining whether an action for
declaratory judgment meets the case-or-controversy requirement, the
Supreme Court requires “that the dispute be ‘definite and concrete, touching
the legal relations of parties having adverse legal interests’; and that it be
‘real and substantial’ and ‘admi[t] of specific relief through a decree of a
conclusive character.’”38
29. See Bykofsky v. Middletown, 389 F. Supp. 836, 846 (M.D. Pa. 1975).
30. See LAYCOCK, supra note 25, at 523 (discussing declaratory judgment as an option to
find out what a party’s rights were without incurring the risk of additional penalties by
violating the statute). Sometimes the same can be accomplished by enjoining enforcement of
the statute. See DOBBS & ROBERTS, supra note 1, at 7. However, injunctive relief, unlike
declaratory judgment, requires a showing of irreparable harm, which makes it more difficult
to show that this remedy is appropriate. See LAYCOCK, supra note 25, at 517; see also Steffel
v. Thompson, 415 U.S. 452, 466 (1972) (“Congress plainly intended declaratory relief to act
as an alternative to the strong medicine of the injunction and to be utilized to test the
constitutionality of state criminal statutes in cases where injunctive relief would be
unavailable . . . .”).
31. See LAYCOCK, supra note 25, at 3–4.
32. See Alsager v. Dist. Court, 384 F. Supp. 643, 648 (S.D. Iowa 1974); Nat’l Union Fire
Ins. Co. v. Lippert Bros., 233 F. Supp. 650, 656 (D. Neb. 1964).
33. DOBBS & ROBERTS, supra note 1, at 7.
34. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 137 (2007).
35. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–40 (1937).
36. See id. at 241.
37. Fair v. Adams, 233 F. Supp. 310, 312 (N.D. Fla. 1964).
38. MedImmune, 549 U.S. at 127 (alteration in original) (quoting Haworth, 300 U.S. at
240–41).
3. Nominal Damages: Why Bother Suing for One Dollar?

Lawsuits are expensive, so suing for one dollar begs the question, why
bother?39 Taylor Swift, an American pop singer, was awarded one dollar in
a suit for sexual assault. Her attorney told the jury that although it was only
a “single symbolic dollar, the value [of that dollar] is immeasurable to all
women in this situation.”40 She was widely praised for standing up for
women and taking a stand against her assailant.41
Nominal damages are not compensatory, but they serve a special function
in the American legal system.42 Nominal damages are a trivial sum, such as
one dollar, which are awarded to the plaintiff when the defendant has violated
the plaintiff’s legal rights, but the plaintiff is unable to prove damages under
another measure.43 Nominal damages are not appropriate where damages are
a required element of a cause of action, such as in an action for negligence.44
Nominal damages are not meant to be reparative in compensation, but they
“publicly affirm that the defendant violated the plaintiff’s rights”45 and can
be sought so that the plaintiff obtains an authoritative judicial determination
of the parties’ legal rights.46 Additionally, courts often award nominal
damages to plaintiffs who cannot show that they suffered an actual injury,
but who can show that they were deprived of “certain ‘absolute’ rights.”47
Nominal damages can be considered a precursor to the previously
impermissible declaratory relief remedy later established by statute.48
Central to this conflict, some courts consider nominal damages a mere
39. See, e.g., Moore v. Liszewski, 838 F.3d 877, 879 (7th Cir. 2016) (“If the plaintiff goes
around bragging that he won his suit, and is asked what exactly he won, and replies ‘$1 dollar,’
he’ll be laughed at.”); Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 237 (1st Cir. 2006) (“One
might ask why the parties should care on appeal about whether a nominal damages award, for
as little as one dollar, should be ordered.”).
40. See Phoebe Lett, Opinion, Taylor Swift’s Priceless Dollar, N.Y. TIMES (Aug. 16,
2017), https://www.nytimes.com/2017/08/16/opinion/taylor-swift-groping-assault.html
[https://perma.cc/2A8E-UGW6].
41. Time Magazine recognized Taylor Swift in its 2017 Person of the Year issue as one
of the “Silence Breakers” who inspired woman to speak out about harassment. See Stephanie
Zacharek et al., The Silence Breakers, TIME, http://time.com/time-person-of-the-year-2017-
silence-breakers/ [https://perma.cc/Q9UF-UQZP] (last visited Oct. 4, 2018).
42. See LAYCOCK, supra note 25, at 561 (discussing the special function of nominal
damages in constitutional law).
43. See Tatum v. Morton, 386 F. Supp. 1308, 1313 (D.D.C. 1974); DOBBS & ROBERTS,
supra note 1, at 225.
45. See Gregory C. Keating, Is There Really No Liability Without Fault?: A Critique of
Goldberg & Zipursky, 85 FORDHAM L. REV. RES GESTAE 24, 32 n.47 (2017).
46. See Morrison v. Bd. of Educ., 521 F.3d 602, 610–11 (6th Cir. 2008) (noting that
nominal damages only have a declaratory effect); see also LAYCOCK, supra note 25, at 561
(describing the declaratory function of nominal damages where there is no available formal
declaratory relief).
47. Carey v. Piphus, 435 U.S. 247, 266 (1978); see infra Part I.A.4.
48. See DOBBS & ROBERTS, supra note 1, at 226 (discussing how claims for nominal
damages may have been used to get issues before a court before declaratory judgments were
a recognized remedy).
vehicle for declaratory judgment.49 One court stated that nominal damages
have “only declaratory effect and do not otherwise alter the legal rights or
obligations of the parties . . . . [T]hey can sometimes constitute effectual
relief, but only with respect to future dealings between the parties.”50
However, a plaintiff’s ability to bring a claim for nominal damages when
declaratory relief is impermissible highlights an important distinction
between nominal damages and declaratory relief.51 Courts award nominal
damages to vindicate plaintiffs for past harm, while declaratory relief
provides a prospective determination of rights before harm has occurred.52
Nominal damages are most appropriate when there has been “a one-off event
that affected [the plaintiff] in the past and will not (under modern standing
and ripeness decisions) support a claim for injunctive or declaratory relief.”53
For example, a student who has graduated from school or a prisoner who has
been released from prison will no longer have a live claim for injunctive or
declaratory relief against his or her school or prison respectively,54 but he or
she may still have a claim for nominal damages. Despite this difference,
nominal damages and declaratory relief may have the same practical effect
or outcome—a judicial determination of the parties’ rights.55
Nominal damages can also serve as a vehicle for nonpecuniary damages
and attorneys’ fees.56 Courts can award noneconomic monetary damages,
such as those for pain and suffering or punitive damages, in conjunction with
nominal damages.57 Additionally, a plaintiff who is awarded nominal
damages is considered the prevailing party and may be eligible to receive
49. See Morrison, 521 F.3d at 610; Freedom from Religion Found., Inc. v. Franklin
County, 133 F. Supp. 3d 1154, 1158 (S.D. Ind. 2015) (“Under Seventh Circuit case law,
nominal damages are more akin to declaratory relief, and should be subject to the same
justiciability principles.”).
50. Morrison, 521 F.3d at 610–11 (alterations in original) (quoting Utah Animal Rights
Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1267–68 (10th Cir. 2004) (McConnell, J.,
concurring)).
51. See LAYCOCK, supra note 25, at 561 (describing instances where nominal damages
can be sought but declaratory judgment is unavailable); see also DOBBS & ROBERTS, supra
note 1, at 7 (“The chief problem in obtaining declaratory relief lies in the rules of justiciability:
rules that courts will not issue advisory opinions, decide moot cases or those that are not ripe,
or deal in any dispute that does not count as a case or controversy.”).
52. See LAYCOCK, supra note 25, at 561 (describing instances where nominal damages
can be sought but declaratory judgment is unavailable).
53. James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort
Claims for Nominal Damages, 111 COLUM. L. REV. 1601, 1606 (2011).
54. Such an individual may be able to bring his or her case if the claim falls within an
exception to mootness, such as that for class certification. See supra Part I.B.2.b for a
discussion about the exceptions to the mootness doctrine.
55. See Moore v. Liszewski, 838 F.3d 877, 879 (7th Cir. 2016) (noting that an award for
nominal damages is not functionally an award for damages at all); Butler v. Dowd, 979 F.2d
661, 673 (8th Cir. 1992) (noting that nominal damages “amount[] to an implicit declaration of
the same things that plaintiffs are requesting in their motion for declaratory relief”).
57. See id. at 225–26. Not all courts allow punitive damages to be awarded in conjunction
with an award of nominal damages. See LAYCOCK, supra note 25, at 737–38 for a discussion
of the split among courts.
reasonable attorneys’ fees under certain statutes.58 Because there is a chance

of being awarded attorneys’ fees, a plaintiff may bring a claim for nominal
damages and hope to shift the cost burden to the defendant.59 However, the
court’s award of nominal damages does not automatically enable the plaintiff
to recover reasonable attorneys’ fees as courts may still determine reasonable
attorneys’ fees to be zero.60
A plaintiff may also bring a claim for nominal damages because he or she
is motivated to change the law or challenge the constitutionality of the
practice or policy. For example, awards of nominal damages can “prompt a
municipality to change its policies.”61 In cases where the plaintiff is not
seeking monetary relief, but instead seeks social change, the case can be
characterized as public litigation or being brought by “non-Hohfeldian
plaintiffs.”62 These are ideological plaintiffs that bring claims to enforce
“legal principles that touch others as directly as themselves and that are
valued for moral or political reasons independent of economic interests.”63
4. Nominal Damages as a Constitutional Remedy
Nominal damages serve a special purpose in the protection of
constitutional rights because they may be the only available remedy to the
plaintiff for a constitutional violation.64 Supreme Court precedent “makes
clear that nominal damages, and not damages based on some undefinable
‘value’ of infringed rights, are the appropriate means of ‘vindicating’ rights
whose deprivation has not caused actual, provable injury.”65 Therefore,
nominal damages help individuals and courts protect constitutional rights and
are an important remedy when a plaintiff can establish a violation of a
58. Most circuit courts award reasonable attorneys’ fees in a claim for nominal damages.
See Anthony DiSarro, A Farewell to Harms: Against Presuming Irreparable Injury in
Constitutional Litigation, 35 HARV. J.L. & PUB. POL’Y 743, 793 nn.235–36 (2012).
59. Id.
60. See Farrar v. Hobby, 506 U.S. 103, 117 (1992) (if the “victory is purely technical or
de minimis, a district court need not go through the usual complexities involved in calculating
attorney’s fees”).
61. DiSarro, supra note 58, at 743, 769 (“[C]ursory review of annual reports prepared and
distributed by municipal law departments reveals that municipalities measure themselves by
the success rate in Section 1983 litigation and the aggregate amount of damages awarded
against their agents.”); see, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311, 318 (2d
Cir. 1999) (observing that nominal damage awards could “encourage the municipality to
reform the patterns and practices that led to constitutional violations, as well as alert the
municipality and its citizenry to the issue”); Cadiz v. Kruger, No. 06-CV-5463, 2007 WL
4293976, at *10 (N.D. Ill. Nov. 29, 2007) (noting that a nominal-damages verdict against the
city could provide a greater incentive for the city to make a change than a damages award
against individual officers because the city could dismiss the latter as the conduct of rogue
employees).
62. Non-Hohfeldian plaintiffs are those that “invoke the judicial power to redress injuries
not easily definable in terms of personal, financial loss or other harms actionable at common
law.” Richard H. Fallon, Jr., Of Justiciability, Remedies and Public Law Litigation: Notes on
the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 3–4 (1984).
63. Id.
64. See Carey v. Piphus, 435 U.S. 247, 266 (1978).
65. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986).
constitutional right but is unable to demonstrate a compensable injury. In

these cases, the plaintiff need only prove a constitutional violation to recover
nominal damages and vindicate their rights.66
Where harm cannot be shown, the plaintiff is not entitled to compensatory
damages, but he or she is entitled67 to nominal damages.68 Additionally, the
plaintiff may not be entitled to injunctive and declaratory relief if the
constitutional violation is one that occurred in the past and is neither ongoing
nor reasonably expected to occur in the future.69 Therefore, without the
remedy of nominal damages, one-off events that deprive individuals of
constitutional rights but cause no harm may not be vindicated.70
B. Determining Federal Jurisdiction: What Is a Proper Dispute?

There are three doctrines that control whether a case may be heard in
federal court: ripeness, standing, and mootness.71 If a claim fails to meet
one of these requirements, federal courts cannot reach the merits of the case.
Part I.B.1 discusses federal jurisdiction and the requirement that a plaintiff’s
claim not be moot. Part I.B.2 discusses the constitutional and prudential
aspects of mootness and uses the exceptions to mootness to illustrate the
prudential considerations of this doctrine.
1. Overview of Federal Jurisdiction
Federal jurisdiction is limited to “cases” or “controversies”72 where a
litigant has suffered some actual injury that can be redressed.73 Federal
courts cannot hear or decide cases that will not affect the rights of the parties
before them.74 If there is no remedy available, or if the court’s decision will
not affect the rights of the parties before it, the order would be an
impermissible advisory opinion.75 If that is the case, the court must dismiss
66. See Carey, 435 U.S. at 266.

67. See Kerman v. City of New York, 374 F.3d 93, 123 (2d Cir. 2004) (holding that the
district court erred in instructing the jury that an award of nominal damages was permissible
rather than mandatory if they concluded that the plaintiff’s constitutional rights were violated).
68. See Stachura, 477 U.S. at 308 n.11; Carey, 435 U.S. at 266.
69. See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (holding that claims for
injunctive and declaratory relief are moot because “[p]ast exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects” (alterations in original) (quoting O’Shea v.
Littleton, 414 U.S. 488, 495–96 (1974))).
70. See Pfander, supra note 53, at 1606.
71. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 55, 119, 131 (6th ed. 2012).
Ripeness “seeks to separate matters that are premature for review because the injury is
speculative and may never occur from those cases that are appropriate for federal court
action.” Id. at 119. Ripeness will not be discussed further because it is outside the scope of
this Note.
72. U.S. CONST. art. III, § 2.
73. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 78 (1983); Williams v.
United States, 401 U.S. 667, 678 (1971) (Harlan, J., concurring in part and dissenting in part).
74. See North Carolina v. Rice, 404 U.S. 244, 246 (1971).
75. See Teague v. Lane, 489 U.S. 288, 316 (1989).
the claim and refrain from entering a judgment. In Flast v. Cohen,76 Chief
Justice Earl Warren explained that the jurisdictional requirements of
ripeness, standing, and mootness serve a two-fold purpose: to ensure that
federal courts only adjudicate adversarial questions and to maintain
separation of powers.77
Standing78 and mootness each originate from Article III of the U.S.
Constitution, which grants federal courts the power to hear only “cases” or
“controversies.”79 Although standing and mootness are similar,80 the
Supreme Court has applied different standards to evaluate standing and
mootness because, despite similar requirements, they serve distinct roles.81
The Supreme Court has recognized that “conduct may be too speculative to
support standing, but not too speculative to overcome mootness.”82 Several
courts have held that a sole claim for nominal damages is insufficient to
confer standing on a plaintiff,83 but at least one court has held that a claim
for nominal damages is sufficient.84
2. If There Is No Dispute—Your Case Is Moot!
In deciding whether a plaintiff’s claim is moot, courts must assess whether
the factual or legal circumstances have changed such that there is no longer
a justiciable question before the court.85 A case becomes moot when a court
76. 392 U.S. 83 (1968).

77. See id. at 95.
78. Standing is a threshold jurisdictional requirement that a plaintiff must satisfy to invoke
federal judicial power. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88–89 (1998).
The plaintiff must meet three requirements to prove he or she has standing to bring a claim:
the plaintiff must have suffered (1) an injury-in-fact that is (2) fairly traceable to the actions
of the defendant and (3) likely to be redressed by a favorable decision. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992).
79. U.S. CONST. art. III, § 2.
80. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (“One commentator
has defined mootness as ‘the doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).’” (quoting Henry P. Monaghan, Constitutional
Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973))).
81. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170
(2000).
82. See id.
83. See Morrison v. Bd. of Educ., 521 F.3d 602, 611 (6th Cir. 2008) (“While we may have
allowed a nominal-damages claim to go forward in an otherwise-moot case, we are not
required to relax the basic standing requirement that the relief sought must redress an actual
injury.”); Freedom from Religion Found., Inc. v. Mercer Cty. Bd. of Educ., No. 1:17-00642,
2017 WL 5473923, at *6 (S.D. W. Va. Nov. 17, 2017) (holding that the claim of nominal
damages is insufficient to confer standing), appeal docketed sub nom. Deal v. Mercer Cty. Bd.
of Educ., No. 17-2429 (4th Cir. Dec. 15, 2017).
84. See Advantage Media L.L.C. v. City of Eden Prairie, 456 F.3d 793, 802 (8th Cir.
2006). However, the Eighth Circuit, in an en banc opinion, has also held that where a
defendant has amended an ordinance, a claim for nominal damages is insufficient to challenge
prior versions of the ordinance. See Phelps-Roper v. City of Manchester, 697 F.3d 678, 687
(8th Cir. 2012) (en banc).
85. See Richard K. Greenstein, Bridging the Mootness Gap in Federal Court Class
Actions, 35 STAN. L. REV. 897, 898 (1983).
cannot grant any “effectual relief.”86 Thus, there are two aspects to
mootness: First, when the issue itself is no longer ongoing or the parties no
longer have stake in the outcome.87 This flexible doctrine requires courts to
practically assess whether a case or controversy remains in light of the
particular facts at hand.88 The claim must be alive at all stages of the
controversy, not just when the complaint is filed.89 If a case becomes moot,
then the court cannot decide the merits of the case unless an exception
applies.90
In general, a court will determine a case is moot if:
“the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome”; or when subsequent events make it
absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur; or when subsequent events make it impossible for the
court to grant to the prevailing party effectual relief, since “the thing sought
to be prohibited has been done, and cannot be undone by any order of
court.”91
Under the first aspect, an issue becomes moot if, for example, the plaintiff
cannot show that a “governmental action or policy . . . has adversely affected
and continues to affect a present interest.”92 Generally, claims for damages
cannot be moot.93
A case also becomes moot if the plaintiff no longer has a continued
“personal stake” in the outcome—a requirement connected to the adversarial
requirement.94 Courts do not have an investigative arm,95 so they require
86. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting Knox v. Serv.
Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)); see Citizens for Responsible Gov’t
State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (“The crucial
question is whether ‘granting a present determination of the issues offered . . . will have some
effect in the real world.’” (alteration in original) (quoting Kennecott Utah Copper Corp. v.
Becker, 186 F.3d 1261, 1266 (10th Cir. 1999))).
87. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400–01 (1980).
88. See id.; STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE 951 (10th ed. 2013)
(“[T]his apparently simple concept has become embroidered with distinctions that seem to
turn less on whether a concrete dispute between the original parties continues to exist and
more on whether, as a matter of policy, the intervening factors should be allowed to frustrate
judicial review of publicly important issues.”).
89. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
90. See United States v. Microsoft Corp., 138 S. Ct. 1186, 1188 (2018) (per curiam);
United States v. Felin & Co., 334 U.S. 624, 640 (1948); Cover v. Schwartz, 133 F.2d 541, 546
(2d Cir. 1942).
91. See Parsons Inv. Co. v. Chase Manhattan Bank, 466 F.2d 869, 871 (6th Cir. 1972)
(citations omitted) (first quoting Powell v. McCormack, 395 U.S. 486, 496 (1969); then
quoting Jones v. Montague, 194 U.S. 147, 153 (1904)).
92. See Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 125–26 (1974).
93. Claims for damages may be moot if the parties settle or the plaintiff is otherwise made
whole and seeks no other relief. See Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 77
(2013) (“[A] claim for damages cannot evade review; it remains live until it is settled [or]
judicially resolved . . . .”).
94. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990) (citing City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983)).
95. See Don B. Kates, Jr. & William T. Barker, Mootness in Judicial Proceedings:
Towards a Coherent Theory, 62 CALIF. L. REV. 1385, 1409 (1974).
that the parties be adverse; this allows courts to consider the entirety of the
problem and the parties’ opposing considerations.96 When the plaintiff no
longer has a personal stake, the plaintiff may not advocate as effectively
because he or she may not be motivated to bring the same effort needed to
succeed as one who is facing the real possibility of an unfavorable outcome.97
If the plaintiff does not sufficiently prosecute his or her case and the court
makes an error of law, the consequences of this precedent may be grave for
future parties litigating the same issues.98
However, a case should not be dismissed as moot if any of the relief sought
is still available to the plaintiff.99 In Powell v. McCormack,100 Adam
Clayton Powell, Jr., sued the U.S. House of Representatives for refusing to
allow him to take his seat in Congress.101 Powell sought a declaratory
judgment that this action was unconstitutional as well as back pay.102
However, before a decision could be rendered, he was seated in the next
House of Representatives, which mooted his claim for injunctive relief.103
Although injunctive relief was no longer available, the Supreme Court held
that the case was not moot because Powell still had a claim for relief in the
form of the money he sought in back pay.104
a. Beyond Article III: The Unclear Boundary of Prudential Mootness

The common-law doctrine of mootness, a discretionary and prudential
doctrine,105 predates the Constitution.106 It was not until the late twentieth
century that mootness developed as a mandatory jurisdictional bar.107 The
Supreme Court has noted that there are prudential aspects to its mootness
96. See id. at 1408–09; Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103
U. PA. L. REV. 772, 773 (1955) (“This adversary system depends upon self-interest as the
motive best suited to bring all pertinent facts, policies and legal issues before the court.”).
97. See Kates & Barker, supra note 95, at 1409; Note, supra note 96, at 773.
98. See Note, supra note 96, at 773.
99. See Kates & Barker, supra note 95, at 1390.
100. 395 U.S. 486 (1969).
101. See id. at 489–93.
102. See id. at 496.
103. See id. at 495–96.
104. See id. at 496.
105. See Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 GEO. WASH.
L. REV. 562, 569 (2009) (noting that courts historically dismissed cases as moot because of
“instrumental concerns, such as conservation of judicial resources, preservation of judicial
authority, the desire to ensure that issues are litigated by properly motived parties, and the
desire to prevent collusive cases” (footnotes omitted)).
106. See Alton & S. Ry. v. Int’l Ass’n of Machinists, 463 F.2d 872, 877 (D.C. Cir. 1972)
(“[Mootness] may be usefully referred to as a common law limitation on the duty of a court to
decide cases presented.”); Hall, supra note 105, at 567–73 (discussing the significant
differences between nineteenth-century mootness and the current mootness doctrine).
107. See Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964) (“Our lack of jurisdiction to
review moot cases derives from the requirement of Article III of the Constitution under which
the exercise of judicial power depends upon the existence of a case or controversy.”); Hall,
supra note 105, at 562–64 (discussing recent cases that have taken the position that mootness
is grounded in Article III but doubting that this was historically the case).
jurisprudence that fall outside the boundary of constitutional mootness

created by the Article III case-and-controversy requirements.108
Generally, courts begin their mootness inquiry with the Constitution but
often justify their decision to dismiss109 or their decision to reach the merits
of the case on the basis of prudential mootness.110 Beyond Article III, courts
often justify dismissing a case as moot based on judicial economy and
instrumental concerns.111 It does not seem fair to subject adverse parties, or
the court system, to onerous litigation when there is no longer a controversy
and the only result would seem to be personal vindication.112 It seems a
waste of limited judicial resources to allow moot cases to continue.113 Courts
also argue that it is not the proper role of federal courts to decide such cases
and that doing so would diminish the authority of the court system.114 For
example, in Flast v. Cohen,115 the Supreme Court recognized that “a policy
limitation is ‘not always clearly distinguished from the constitutional
limitation.’”116
b. Mootness Exceptions: Illuminating the Prudential Aspects of Mootness

The Supreme Court has noted that the starting point of the mootness
inquiry is in the Constitution, but the exceptions to the doctrine are based on
“practicalities and prudential considerations.”117 Federal courts will hear
moot claims if they fall under one of four exceptions, generally described as:
(1) capable of repetition, yet evading review; (2) class certification;
(3) voluntary cessation; and (4) collateral consequences.118 In Honig v.
108. See Hall, supra note 105, at 574–75 n.55; see also City of Erie v. Pap’s A.M., 529
U.S. 277, 288 (2000) (“Our interest in preventing litigants from attempting to manipulate the
Court’s jurisdiction to insulate a favorable decision from review further counsels against a
finding of mootness here.”). But see Richardson v. Ramirez, 418 U.S. 24, 36 (1974) (“[P]urely
practical considerations have never been thought to be controlling by themselves on the issue
of mootness in this Court. While [states] may choose to adjudicate a controversy simply
because of its public importance, and the desirability of . . . statewide decision[s], we are
limited by the case-or-controversy requirement of Art. III to adjudication of actual disputes
between adverse parties.”).
109. See infra Part II.B.3.
110. The exceptions to the doctrine look “to practicalities and prudential considerations.”
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 n.11 (1980).
111. See Note, Mootness on Appeal in the Supreme Court, 83 HARV. L. REV. 1672, 1675
(1970). For a definition of “instrumental concerns,” see supra note 105.
113. See id. at 1433–34 (arguing that judicial economy is concerned with the allocation of
resources that have not been used rather than what has already been expended).
114. See Morrison v. Bd. of Educ., 521 F.3d 602, 611 (6th Cir. 2008) (“Allowing [the case]
to proceed to determine the constitutionality of an abandoned policy . . . trivializes the
important business of the federal courts.”).
115. 392 U.S. 83 (1968).
116. Id. at 97 (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1958)). Although a distinct
doctrine, the Court’s reasoning and analysis on standing is instructive on mootness due to the
similarities between the doctrines. See supra notes 74–84 and accompanying text.
117. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 n.11 (1980).
118. See CHEMERINSKY, supra note 71, at 135–51. The collateral-consequences exception
is generally limited to criminal cases: cases of wrongful conviction and habeas corpus
Doe,119 Chief Justice William Rehnquist argued that although there may be
an attenuated justification for mootness in the Constitution, the exceptions to
the doctrine imply that the doctrine is not fully a jurisdictional issue.120
Additionally, Rehnquist argued that if mootness is fully grounded in the
Constitution, then the federal courts would not be able to override it and
allow exceptions to the rule because it would be impermissible to do so if
mootness is solely a constitutional doctrine.121
In Honig, Rehnquist wrote a concurrence to argue for reconsideration of
the mootness requirement.122 Rehnquist argued for a relaxed test or an
additional exception for mootness when supervening events make the case
moot after the Supreme Court has granted certiorari.123 To justify relaxing
or suspending the mootness doctrine, Rehnquist argued that the doctrine is
not fully grounded in the Constitution.124 He looked at the historical
development of mootness and noted that the earliest cases did not base
mootness in the Constitution.125 He further argued that the Supreme Court’s
unique ability to decide federal questions in a way that binds every court in
the country is a sufficient justification to relax or abandon the doctrine of
mootness in these instances.126
To apply the “capable of repetition, yet evading review” exception, there
are two factors that must be simultaneously present: “(1) the challenged
action [is] in its duration too short to be fully litigated prior to cessation or
expiration, and (2) there [is] a reasonable expectation that the same
complaining party [will] be subject to the same action again.”127 Under the
second prong, it is not sufficient if there are other similarly situated litigants;
it must be the very same plaintiff, defendant, and injury. The issue may
temporarily disappear, making the case moot, but the exception allows the
issue to be litigated as long as the parties can demonstrate a continued
personal stake by showing they will likely be injured by recurrence of the
harm.128
There is a further subset of cases which highlight the underlying prudential
considerations of this doctrine. In these cases, the Court has also relaxed or
petitions. See Sibron v. New York, 392 U.S. 40, 57 (1968) (“[A] criminal case is moot only if
it is shown that there is no possibility that any legal consequences will be imposed on the basis
of the challenged conviction.”). The collateral-consequences exception is not relevant to this
Note and will not be discussed further.
119. 484 U.S. 305 (1988).
120. See id. at 331 (Rehnquist, C.J., concurring) (“[A]n unwillingness to decide moot cases
may be connected to the case or controversy requirement of Art. III, it is an attenuated
connection that may be overridden where there are strong reasons to override it.”).
121. See id.
122. See id. at 329.
123. See id. at 330.
124. See id.
125. See id. at 330–31 (citing Mills v. Green 159 U.S. 651 (1895) and S. Pac. Terminal Co.
v. ICC, 219 U.S. 498 (1911)) (noting that the “capable of repetition, yet evading review”
exception was adopted because of pragmatic considerations, with no mention of Article III).
126. See id. at 332.
127. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).
128. See S. Pac. Terminal Co., 219 U.S. at 515.
done away with the same-party requirement.129 Instead, courts apply the
exception if there is a high probability that the issue will recur between the
defendant and other members of the public at large.130 This additional
exception highlights situations where courts are willing to further relax the
mootness requirement if the issue is ongoing, but the plaintiff’s personal
stake may be short-lived and not likely to recur.131
In applying the class certification exception, courts are more willing to use
their discretion in deciding whether to allow a claim to proceed even though
the plaintiff lacks a personal stake in the case.132 A class representative’s
claim may become moot after class certification is granted, such as where a
prisoner is seeking to challenge a prison policy and is released from prison.
However, this does not moot the case or the representative’s status.133 This
is based on the premise that the unnamed persons acquire legal statuses
separate from the named plaintiff.134
A defendant who voluntarily ceases the challenged conduct does not moot
the underlying controversy unless there is no reasonable possibility that the
challenged conduct will resume.135 Generally, a case will not be dismissed
merely because the plaintiff failed to prove that the defendant is likely to
repeat the challenged conduct.136 The defendant has the burden to prove it
is “absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur.”137 Similar to the “capable of repetition, but evading
review” exception, courts seek to review ongoing issues, even if the plaintiff
may lack a personal stake.138
II. WHAT IS A SUFFICIENT DISPUTE?

Mootness disputes typically boil down to the availability of an alternative
remedy.139 This conflict has developed not because there is disagreement as
to whether nominal damages are available, but rather a disagreement as to
129. The Court has relaxed the same-party requirement in abortion cases. See Roe v. Wade,
410 U.S. 113, 125 (1973) (“[H]uman gestation period is so short that the pregnancy will come
to term before the usual appellate process is complete [so that] pregnancy litigation seldom
will survive much beyond the trial stage, and appellate review will be effectively denied.”);
see also Doe v. Bolton, 410 U.S. 179, 187 (1973). The Court has similarly relaxed the same-
party requirement in election cases. See Rosario v. Rockefeller, 410 U.S. 752, 756–57 (1972);
Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972).
130. See Honig, 484 U.S. at 335–36 (Scalia, J., dissenting).
131. See Hall, supra note 105, at 563.
132. See supra notes 129–31 and accompanying text.
133. See Sosna v. Iowa, 419 U.S. 393, 399 (1975).
134. See id. at 399–402.
135. See Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 221–24 (2000); Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
136. See Nat’l Res. Def. Council v. City of Los Angeles, 840 F.3d 1098, 1104 (9th Cir.
2016) (reversing the district court’s decision, which impermissibly shifted the burden of proof
to the plaintiff); FTC v. Affordable Media, LLC, 179 F.3d 1228, 1237–38 (9th Cir. 1999).
137. Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated
Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)).
the purpose and function of nominal damages and whether they will affect or
influence any future conduct.140 In cases where plaintiffs have alleged a
constitutional deprivation but the conduct is no longer ongoing, courts have
issued conflicting opinions regarding the mootness of such claims. Part II.A
discusses the majority rule, which primarily relies on Supreme Court
precedent and holds that nominal damages are the appropriate remedy for
past violations of constitutional rights and therefore warrant a determination
of the merits of the case.141 Part II.B discusses the viewpoint of a minority
of courts, which have taken a functionalist approach and looked at the
practical effects of awarding nominal damages to determine whether the
parties are still adversarial when the statute—the real cause of the dispute—
has been repealed.142
A. Majority Rule: Nominal Damages Are Always Sufficient

A vast majority of circuit courts that have ruled on this issue have held that
a claim for nominal damages will sustain an otherwise moot constitutional
claim.143 This majority rule differs from the minority rule in its view that
nominal damages are a retrospective damages award, not a vehicle for a
declaratory judgment. Courts rely primarily on Supreme Court precedent,
which established that nominal damages are the appropriate remedy for a
constitutional deprivation.144
The Supreme Court decisions that courts rely on are Carey v. Piphus145
and Memphis Community School District v. Stachura.146 The Court held in
Carey,147 and affirmed in Stachura,148 that compensatory damages cannot be
awarded without some showing of an actual compensable injury and that
nominal damages are the appropriate remedy in that instance. Courts have
2004) (McConnell, J., concurring); Kates & Barker, supra note 95, at 1403 (objecting to the
availability of declaratory judgment on the grounds “that the remedy will be ineffective
because no future conduct will be influenced by the decree” and noting that “[i]f it can
confidently be predicted that no future conduct will be affected, then considerations of judicial
economy would dictate a holding of mootness”).
141. See infra Part II.A.
142. See infra Part II.B.
143. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 n.32 (5th Cir. 2009); Utah
Animal Rights Coal., 371 F.3d at 1257–58; Bernhardt v. County of Los Angeles, 279 F.3d
862, 872 (9th Cir. 2002); Doe v. Delie, 257 F.3d 309, 313–14 & n.3 (3d Cir. 2001); Amato v.
City of Saratoga Springs, 170 F.3d 311, 317–20 (2d Cir. 1999); Henson v. Honor Comm. of
the Univ. of Va., 719 F.2d 69, 72 n.5 (4th Cir. 1983); Murray v. Bd. of Trs., Univ. of
Louisville, 659 F.2d 77, 79 (6th Cir. 1981). The D.C. Circuit Court of Appeals has not ruled
on this issue. PETA v. Gittens, 396 F.3d 416, 421 (D.C. Cir. 2005) (“We assume, without
deciding, that a district court’s award of nominal damages—$1—prevents a case from
becoming moot on appeal.”).
144. See, e.g., Bernhardt, 279 F.3d at 872; Amato, 170 F.3d at 317; Comm. for the First
Amendment v. Campbell, 962 F.2d 1517, 1526–27 (10th Cir. 1992); Henson, 719 F.2d at 72
n.5.
145. 435 U.S. 247 (1978).
146. 477 U.S. 299 (1986).
147. 435 U.S. at 254–55.
148. 477 U.S. at 306.
reasoned that although the Supreme Court did not “squarely address[] the
issue,” the cases “necessarily impl[y] that a case is not moot so long as the
plaintiff seeks to vindicate his constitutional rights through a claim for
nominal damages.”149
Courts often rely on this precedent, but a few have further justified their
rulings by looking to the special purpose of nominal damages in
constitutional law.150 It tends to be hard for victims of constitutional
violations to show actual compensable injury, but nevertheless, courts have
determined that these rights are worthy of vindication, even if only by an
award of one dollar.151 Such an award balances the recognition of “the
importance to organized society that those rights be scrupulously observed”
with an acknowledgement of the “principle that substantial damages should
be awarded only to compensate actual injury.”152 Further, courts note the
importance of determining liability not just for the litigant but for society as
well because holding a government entity liable can encourage reform.153
Courts further recognize that in a claim for nominal damages, the plaintiff
is not seeking prospective relief, such as an injunction or declaratory relief,
but has plausibly alleged a past constitutional harm capable of vindication.154
Courts allow these claims to be heard because even though the challenged
conduct has ceased and the court has found that it will not occur again, merely
repealing the statute does not “erase[] the slate concerning the alleged
[constitutional] violations.”155
For example, in Ermold v. Davis,156 the U.S. Court of Appeals for the Sixth
Circuit held that a claim for damages was not moot even though a claim for
149. Ward ex rel. Ward v. Santa Fe Indep. Sch. Dist., 35 F. App’x 386, 386 (5th Cir. 2002)
(per curiam); see, e.g., Covenant Media of S.C., LLC v. City of North Charleston, 493 F.3d
421, 428 (4th Cir. 2007); Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir. 1999);
Murray v. Bd. of Trs., 659 F.2d 77, 80 (6th Cir. 1981); Davis v. Village Park II Realty Co.,
578 F.2d 461, 463 (2d Cir. 1978); Fitzgerald v. City of Portland, No. 14-CV-00053, 2014 WL
5473026, at *5 (D. Me. Oct. 27, 2014).
150. See, e.g., Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002)
(quoting Carey, 435 U.S. at 266); Fitzgerald, 2014 WL 5473026, at *5–6 (noting the
incongruity that a claim for declaratory relief is moot but a claim for nominal damages is not,
but justifying this outcome based on the special purpose of nominal damages).
151. See Bernhardt, 279 F.3d at 871 (“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.” (quoting City of Riverside v. Rivera, 477 U.S. 561, 574 (1986))); Amato,
170 F.3d at 317–18.
152. Bernhardt, 279 F.3d at 871 (quoting Carey, 435 U.S. at 266).
153. See, e.g., Amato, 170 F.3d at 317–18; Yniguez v. Arizonans for Official English, 42
F.3d 1217, 1243 (9th Cir. 1995) (en banc) (holding that nominal damages were an appropriate
remedy because “[t]he right of free speech . . . must be vigorously defended” and “the
protection of First Amendment rights is central to guaranteeing society’s capacity for
democratic self-government”), rev’d on other grounds sub nom. Arizonans for Official
English v. Arizona, 520 U.S. 43 (1997).
154. See Fitzgerald, 2014 WL 5473026, at *5; see also Burns v. Pa. Dep’t of Corr., 544
F.3d 279, 284 (3d Cir. 2008) (holding that a completed violation of constitutional rights would
entitle plaintiff to an award of nominal damages).
155. See Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir.
1992).
156. 855 F.3d 715 (6th Cir. 2017).
injunctive relief was.157 Although the claim for damages in Ermold was not
limited to nominal damages, the reasoning of the court is instructive. In
Ermold, a same-sex couple was denied a marriage license.158 While the case
was ongoing, the claim for injunctive relief became moot due to superseding
law.159 The court held that although the claim for injunctive relief was moot,
the case would not be dismissed as moot because the plaintiffs were a specific
set of individuals who sought damages for a particularized harm.160 The
court noted that the case was not brought merely as a general challenge to a
policy.161
B. Minority Rule: A Functionalist Approach

A minority of courts have held that nominal damages are insufficient to
sustain an otherwise moot constitutional claim if the plaintiff cannot show a
compensable injury and there is no chance of recurrence. These courts
include the Eleventh Circuit and the Eighth Circuit,162 as well as district
courts in the First and Seventh Circuits.163 Part II.B.1 addresses the
functionalist approach that the Eleventh Circuit and the district courts in the
First Circuit have adopted. Part II.B.2 discusses the bright-line rule the
Eighth Circuit and district courts in the Seventh Circuit have adopted.
Finally, Part II.B.3 notes the prudential and judicial economy reasons for this
rule.
1. Flexible Functionalist Approach
In Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs,164 the
city of Sandy Springs adopted an ordinance criminalizing the commercial
distribution of obscene material.165 The Eleventh Circuit originally upheld
the city ordinance because of binding precedent and encouraged the
157. See id. at 717.

158. Id. at 716.
159. Id. at 718.
160. Id. at 718–20.
161. See id. at 718.
162. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1263–64
(11th Cir. 2017) (en banc), cert. denied sub nom. Davenport v. City of Sandy Springs, 138 S.
Ct. 1326 (2018); Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en
banc) (holding that, where the defendant has amended the ordinance, a plaintiff’s claim for
nominal damages is moot as to the prior versions of the ordinance because a claim for nominal
damages “cannot revive an otherwise moot constitutional claim against ‘a regime no longer in
existence’” (quoting Morrison v. Bd. of Educ., 521 F.3d 602, 611 (6th Cir. 2008))).
163. See, e.g., Soto v. City of Cambridge, 193 F. Supp. 3d 61, 71 (D. Mass. 2016) (holding
that a claim for nominal damages was insufficient to save the case from being dismissed as
moot); Freedom from Religion Found., Inc., v. Concord Cmty. Schs., 207 F. Supp. 3d 862,
874 n.7 (N.D. Ind. 2016) (noting that multiple district courts have found nominal damages
insufficient to save an otherwise moot constitutional claim), aff’d, 885 F.3d 1038 (7th Cir.
2018).
164. 868 F.3d 1248 (11th Cir. 2017) (en banc), cert. denied sub nom. Davenport v. City of
Sandy Springs, 138 S. Ct. 1326 (2018).
165. See id. at 1253.
appellants to seek a rehearing en banc to overturn the precedent.166 After the

Eleventh Circuit granted rehearing en banc, the City Council unanimously
voted to repeal the portion of the ordinance at issue.167 The court held that
the repeal of the ordinance mooted the plaintiff’s claims for declaratory and
injunctive relief.168
The court then had to decide whether a claim for nominal damages would
be sufficient to save the claim from dismissal as moot and held that it does
not.169 The Eleventh Circuit took a functional approach and did not foreclose
the possibility that nominal damages could survive as a lone remedy, but held
that there needed to be some other “practical effect.”170 First, the court
distinguished the Supreme Court cases that the majority rule relies on.171
Next, the court analogized nominal damages as functionally similar to
declaratory judgment.172 Finally, the court addressed policy concerns.173
To distinguish Supreme Court precedent, the court reasoned that none of
the Supreme Court decisions that the majority rule relies on are directly on
point.174 The court found that Carey was distinguishable because there were
other damages remedies available to the plaintiff, and the claim was more
than just a sole claim for nominal damages.175 Next, the court distinguished
Stachura because that case did not address mootness; rather, it only
confirmed that nominal damages are the appropriate remedy for a
constitutional violation that causes no actual provable injury.176 Finally, the
court distinguished Arizonans for Official English v. Arizona177 because
nominal damages were not an available remedy, so the Court never reached
the question of whether they saved the case from mootness.178
Instead, the court relied on a Supreme Court case on standing, Steel Co. v.
Citizens for a Better Environment,179 to support its holding.180 In Steel Co.,
the Supreme Court held that “psychic satisfaction” is insufficient to confer
standing on the plaintiff.181 The Eleventh Circuit similarly found the claim
for nominal damages would only result in psychic satisfaction, or judicial
166. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 831 F.3d 1342, 1348
(11th Cir. 2016) (“Therefore, unless and until our holding in Williams IV is overruled en banc,
or by the Supreme Court, we are bound to follow it. . . . Appellants are free to petition the
court to reconsider our decision en banc, and we encourage them to do so.”), vacated on reh’g
en banc, 868 F.3d 1248 (2017).
167. See Flanigan’s Enters., 868 F.3d at 1254.
168. See id. at 1263.
169. See id. at 1263–64.
170. See id. at 1264.
171. See id. at 1265–68.
172. See id. at 1268–69.
173. See id. at 1270.
174. See id. at 1265.
175. See id. at 1265–66 & n.18.
176. See id.
177. 520 U.S. 43 (1997).
179. 523 U.S. 83 (1998).
180. See Flanigan’s Enters., 868 F.3d at 1267–68.
181. 523 U.S. at 107.
validation of an outcome that has already been determined.182 However, this

is not to say that the court in Flanigan’s Enterprises did not consider
constitutional violations to be a harm deserving of vindication. The court
reasoned there was no practical effect because the real dispute, repealing the
statute, was resolved and there was no longer a live dispute.183 Similarly,
Judge Michael McConnell, in his concurrence in Utah Animal Rights
Coalition v. Salt Lake City Corp.,184 compared constitutional violations to
actions for libel or trespassing where there is some other dispute that satisfies
the “case” or “controversy” requirement.185 Judge McConnell reasoned that
where there is some ongoing dispute, there is merit in allowing the case to
continue to a judicial determination because it will affect the parties’
rights.186
Next, the court held that nominal damages function as a declaratory
judgment and therefore should be treated the same under the law.187 The
court noted that the Federal Declaratory Judgment Act was intended to
expand the type of remedies available, but not increase federal
jurisdiction.188 It explained that neither nominal damages nor declaratory
relief is itself an independent source of jurisdiction.189 The court then
reasoned that because declaratory judgment is not available as a remedy for
an otherwise moot case, neither should nominal damages be.190
The court did not adopt a bright-line rule and noted there would be
instances where a sole remaining claim for nominal damages would not be
moot.191 The court noted that if an alleged constitutional violation was still
a live dispute, the claim would not be moot even if the only remedy available
is nominal damages.192 The court did not define what would be considered
a live dispute or ongoing controversy, nor what a practical effect of a claim
for nominal damages would be.193 For example, the court could have limited
its holding to a statute or ordinance that had never been enforced but
neglected to do so.

183. See id. at 1264–65.
184. 371 F.3d 1248, 1262 (10th Cir. 2004) (McConnell, J., concurring).
185. See id. at 1264.
186. See id.
188. See id. at 1268 (citing Schilling v. Rogers, 363 U.S. 666, 677 (1960)).
189. See id.
190. See id.
191. See id. at 1263 n.12.
192. See id. at 1263–64.
193. See id. at 1273–74 (Wilson, J., dissenting).
The First Circuit has not ruled directly on this issue194 and district courts
in the First Circuit have been inconsistent in their rulings.195 In Soto v. City
of Cambridge,196 the court held that the plaintiff’s claims for injunctive and
declaratory relief were moot because the city repealed the ordinance and
nominal damages were insufficient to save the otherwise moot case.197
Similar to the Eleventh Circuit, the court in Soto recognized that this is not a
bright-line rule, and there are cases where a sole remaining claim for nominal
damages will be sufficient; however, where the ordinance has been repealed,
the court held the case should be dismissed as moot.198 Similar to the
reasoning in the Eleventh Circuit, the court in Soto reasoned it would be
inconsistent and would “accomplish nothing” if it allowed the claim for
nominal damages to go forward while the claim for declaratory relief is
moot.199 Conversely, in Fitzgerald v. City of Portland,200 the District Court
of Maine touched upon the oddity that nominal damages and declaratory
relief are functionally the same.201 However, the court ultimately held that
it was appropriate to allow the claim for nominal damages to be heard
because the plaintiffs had “plausibly alleged a past constitutional harm
capable of vindication.”202
Although these district courts in the First Circuit appear to be inconsistent,
both employ a flexible approach that focuses on the alleged harm. In Soto,
the court did not hold that nominal damages will never save an otherwise
moot constitutional claim, similar to the court in Flanigan’s Enterprises.203
Rather, the court took a closer look to determine whether there was still an
194. See ACLU v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 n.7 (1st Cir. 2013)
(noting that nominal damages are unavailable as a remedy but not discussing whether this
would have saved the case from dismissal); Kuperman v. Wrenn, 645 F.3d 69, 73 n.5 (1st Cir.
2011) (holding that a claim for nominal damages and punitive damages saves an otherwise
moot claim from dismissal); Cty. Motors, Inc. v. Gen. Motors Corp., 278 F.3d 40, 43 (1st Cir.
2002) (discussing that a claim for damages may save a case from mootness, but determining
that the plaintiff had waived its claim to nominal damages); Anthony v. Commonwealth of
Massachusetts, 415 F. Supp. 485, 494 (D. Mass. 1976) (holding that the claim for nominal
damages was incidental to relief sought and could not save the case from mootness), rev’d on
other grounds, 442 U.S. 256 (1979). But see Fitzgerald v. City of Portland, No. 14-CV-00053,
2014 WL 5473026, at *5 (D. Me. Oct. 27, 2014) (holding that a claim for nominal damages
is sufficient to save an otherwise moot case from dismissal).
195. Compare Duffy v. Quattrocchi, 576 F. Supp. 336, 342 (D.R.I. 1983) (holding that
“where the inquiry is mootness vel non, the possibility of an award of nominal damages will
not keep an otherwise deflated claim afloat”), and Soto v. City of Cambridge, 193 F. Supp. 3d
61, 71 (D. Mass. 2016), with Fitzgerald, 2014 WL 5473026, at *6 (holding that the claim is
not moot because the plaintiffs alleged a plausible constitutional violation and were entitled
to nominal damages).
196. 193 F. Supp. 3d 61 (D. Mass. 2016).
197. See id. at 71 (citing Duffy, 576 F. Supp. at 342).
198. See id.
199. See id. at 72.
200. No. 14-CV-00053, 2014 WL 5473026 (D. Me. Oct. 27, 2014).
201. See id. at *20.
202. See id.
203. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1270 n.23
Ct. 1326 (2018); Soto, 193 F. Supp. 3d at 71.
otherwise live dispute or harm to be vindicated.204 This approach is also

what the court did in Fitzgerald, however, the court in Fitzgerald determined
the alleged constitutional violation was sufficient to sustain the claim for
nominal damages as opposed to the court in Soto, which found that there was
no harm that needed to be vindicated.205 This flexible approach, which
requires the courts to look at the alleged harm, contrasts with the bright-line
approach that the majority of appellate courts206 and district courts in the
Seventh Circuit have applied.207
2. Bright-Line Functionalist Approach
Prior to Flanigan’s Enterprises, district courts in the Seventh Circuit held
that nominal damages are insufficient to save an otherwise moot
constitutional claim.208 Their rulings were not limited to instances where
plaintiffs were unable to show a previous constitutional violation. In fact,
courts have applied this rule where the conduct actually occurred, regardless
of whether harm occurred.209
The district courts in the Seventh Circuit adopted a bright-line rule that
nominal damages should be treated the same as declaratory judgment under
the law, and therefore in instances where declaratory judgment is improper,
a claim for nominal damages is also improper.210 This bright-line rule treats
nominal damages as synonymous with declaratory judgment and analyzes
them as such for the purposes of justiciability.211 District courts within the
Seventh Circuit have held that “nominal damages are more akin to
declaratory relief and should be subject to the same justiciability
204. See Soto, 193 F. Supp. 3d at 71.

205. See id.; Fitzgerald, 2014 WL 5473026, at *5.
206. See supra Part II.A.
207. See infra Part II.B.2.
208. See Freedom from Religion Found., Inc., v. Concord Cmty. Schs., 207 F. Supp. 3d
862, 874 n.7 (N.D. Ind. 2016) (noting that multiple district courts have found nominal damages
insufficient to save an otherwise moot constitutional claim), aff’d, 885 F.3d 1038 (7th Cir.
2018). The Seventh Circuit has not yet ruled on this issue. See Concord Cmty. Schs., 885 F.3d
at 1052–53 (holding that the defendant had not met its burden under voluntary cessation and
therefore declining to “decide the jurisdictional issue [the defendant] raised—whether a suit
for nominal damages alone is a sufficiently justiciable controversy under Article III”).
209. See, e.g., Freedom from Religion Found., Inc. v. Franklin County, 133 F. Supp. 3d
1154, 1159–60 (S.D. Ind. 2015) (holding that if the government voluntarily ceases the alleged
illegal conduct, the claims, including claims for nominal damages, should be dismissed as
moot absent some evidence that the offer is disingenuous); Freedom from Religion Found.,
Inc. v. City of Green Bay, 581 F. Supp. 2d 1019, 1031 (E.D. Wis. 2008) (holding that nominal
damages were insufficient even if the challenged conduct occurred but ceased before the
lawsuit was filed).
210. See, e.g., Franklin County, 133 F. Supp. 3d at 1158 (“Under Seventh Circuit case law,
nominal damages are more akin to declaratory relief, and should be subject to the same
justiciability principles.”).
211. See id.
principles.”212 The rulings look to whether the underlying purpose of the suit
is to stop the challenged conduct rather than to vindicate individual rights.213
In particular, these courts’ rulings look to whether there is an ongoing
constitutional violation rather than if any alleged unconstitutional conduct
has occurred in the past.214 In Freedom from Religion Foundation, Inc. v.
Franklin County,215 the court held that because there was no “present proof
of violation or deprivation, just past allegations, there [wa]s no need to
vindicate rights.”216 Further, the court noted that seeking to “determine the
constitutionality of a [repealed] policy . . . vindicates no rights and is not a
task of the federal courts.”217
Similarly, the Eighth Circuit, sitting en banc, held that nominal damages
are not sufficient to sustain a claim against repealed versions of a statute and
instead opted to limit the constitutional challenge only to the current version
of the statute.218 Curiously, the court did not rely on Eighth Circuit precedent
which held that nominal damages are sufficient to confer standing.219 Rather,
the court cites Morrison v. Board of Education,220 a Sixth Circuit decision,
for the proposition that a claim for nominal damages “cannot revive an
otherwise moot claim against ‘a regime no longer in existence.’”221
3. Prudential and Judicial Economy Considerations
Courts also rely upon prudential and judicial economy concerns to support
dismissing a sole claim for nominal damages. This is in contrast to the typical
invocation of prudential concerns, which courts use to justify reaching the
merits of a moot claim.222 However, when courts invoke prudential concerns
to dismiss cases involving nominal damages claims, they focus on wasting
212. See id. at 1159 (citing City of Green Bay, 581 F. Supp. 2d at 1029–30).
213. See id. at 1159–60; City of Green Bay, 581 F. Supp. 2d. at 1033 (“[T]he plaintiffs have
already won. The Defendants have changed their offending behavior. Practically speaking,
the Plaintiffs have a concrete victory that actually changes the circumstances on the ground.
Having obtained a real-life victory, there is nothing to be gained from spending years and
thousands of dollars to obtain a piece of paper saying that the Plaintiffs were right.”).
214. See Franklin County, 133 F. Supp. 3d at 1159–60 (“Because there is no present proof
of violation or deprivation, just past allegations, there is no need to vindicate rights. The Court
finds that [plaintiff]’s legally cognizable interest of eliminating constitutional violations . . .
no longer exists. Accordingly, [plaintiff] cannot not use nominal damages to compensate for
past wrongs . . . .”).
215. 133 F. Supp. 3d 1154 (S.D. Ind. 2015).
216. See id. at 1159.
217. See id. at 1160.
218. Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc).
219. See Advantage Media L.L.C. v. City of Eden Prairie, 456 F.3d 793, 802 (8th Cir. 2006)
(holding that a lone claim for nominal damages is sufficient to confer standing); see also Kuhr
ex rel. Kuhr v. Millard Pub. Sch. Dist., No. 8:09CV363, 2012 WL 10387, at *2 (D. Ne. Jan.
3, 2012) (stating that, in Advantage Media, the Eight Circuit spoke to the issue of whether a
claim for nominal damages was sufficient to prevent dismissal as moot).
220. 521 F.3d 602 (6th Cir. 2008).
221. Phelps-Roper, 697 F.3d at 687 (quoting Morrison, 521 F.3d at 611).
222. The exceptions to the doctrine look “to practicalities and prudential considerations.”
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 n.11 (1980); see supra Part I.B.2.b.
judicial resources and resources of municipalities and plaintiffs’ ability to

manipulate jurisdiction.223
Courts and judges are concerned that deciding the merits of cases for
nominal damages is a waste of precious judicial resources where the outcome
is already determined.224 Courts are particularly concerned about expending
judicial resources when the only result is “purely psychic satisfaction” or
“judicial validation . . . of an outcome that has already been determined.”225
The concern is that, because the plaintiffs in these cases did not seek
compensatory damages, there is no retrospective relief for the alleged
constitutional violation that could have made them whole;226 plaintiffs are
only seeking the “moral satisfaction” of a judicial ruling.227 Finally, there is
a concern that “the relief sought must have legal effect in determining the
present and future rights and obligations of the parties”228 and that awarding
nominal damages based on a policy no longer in effect would have “no effect
on the legal rights of the parties.”229 In Morrison, the Sixth Circuit stated
that “[a]llowing [the claim for nominal damages] to proceed to determine the
constitutionality of an abandoned policy—in the hope of awarding the
plaintiff a single dollar—vindicates no interest and trivializes the important
business of the federal courts.”230
A further concern is that plaintiffs will be able to manipulate jurisdiction
and ensure that their case will not be dismissed as moot by pleading a claim
for nominal damages.231 Although courts will be skeptical of a belated claim
for nominal damages,232 a plaintiff can likely evade judicial skepticism by
pleading a claim for nominal damages simultaneously with his or her claim
for injunctive and declaratory relief.
223. Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1270 (11th
Cir. 2017) (en banc), cert. denied sub nom. Davenport v. City of Sandy Springs, 138 S. Ct.
1326 (2018); Morrison, 521 F.3d at 611 (holding that allowing a claim for nominal damages
to go through “trivializes the important business of the federal courts”); Freedom from
Religion Found., Inc. v. City of Green Bay, 581 F. Supp. 2d. 1019, 1033 (E.D. Wis. 2008)
(“[T]here is nothing to be gained from spending years and thousands of dollars to obtain a
piece of paper saying that the Plaintiffs were right.”).
224. Morrison, 521 F.3d at 611; Amato v. City of Saratoga Springs, 170 F.3d 311, 322 (2d
Cir. 1999) (Jacobs, J., concurring) (disagreeing with the majority’s justification that even
though the plaintiffs can only collect one dollar, there are significant benefits to the litigant
and society, and instead noting the “wasteful imposition on the trial judge and on the
taxpayers”).
225. Flanigan’s Enters., 868 F.3d at 1268 (11th Cir. 2017).
2004) (McConnell, J., concurring).
227. See id.
228. See id.
229. See id. at 1265 (emphasis added).
230. See Morrison v. Bd. of Educ., 521 F.3d 602, 611 (6th Cir. 2008).
Ct. 1326 (2018).
232. See Bayer v. Neiman Marcus Grp., 861 F.3d 853, 869 (9th Cir. 2017) (“When invoked
to avoid mootness, a claim for nominal damages not explicitly stated in the complaint bears
close inspection to ensure it does not fail as a matter of law.”).
III. BALANCING JUDICIAL ECONOMY AND VINDICATING

CONSTITUTIONAL RIGHTS
Both the majority and minority rules are overly broad. Adjusting the
majority rule into a flexible, but more exacting, standard would address
concerns of the courts in the minority without drastically shifting the law.
Even though the Supreme Court declined to hear Flanigan’s Enterprises,233
the circuit courts could adopt this flexible standard without disrupting the
current law. Further, this dispute, and the inconsistencies in the law, shows
that the lower courts would benefit from the Supreme Court’s guidance on
the issue of prudential mootness.
This Part argues that courts should adopt a flexible standard, which would
allow a well-pled claim for nominal damages to sustain an otherwise moot
constitutional claim. However, when all but the nominal damages claim is
dismissed as moot, the courts should take a second, more exacting, look at
the claim for nominal damages and determine if the plaintiff has alleged a
particularized deprivation of a constitutional right or harm sufficient to allow
the claim to continue. Conclusory allegations that the plaintiff was harmed
or his or her constitutional rights were violated should not suffice to save the
case from dismissal.
Part III.A argues that the minority rule is overbroad and impermissible
under current Supreme Court precedent. Part III.B then argues that the
majority rule can be revised slightly to address the prudential concerns of the
minority rule without a drastic shift in the current law. Finally, Part III.C
discusses how this issue has arisen from a lack of clarity in the mootness
doctrine and argues that the Supreme Court should provide more guidance in
this area of the law.
A. The Minority Rule Is Overbroad and Impermissible

The minority rule is overbroad and impermissible under Supreme Court
precedent. The minority rules, both the bright-line and flexible standard, are
overbroad because they include cases where constitutional rights have not
actually been violated, where there is no claim for compensatory damages,
and where there is no ongoing dispute.234 The rules also violate Supreme
Court precedent by disregarding the special purpose nominal damages serve
in constitutional law and the availability of secondary remedies.
The minority rules incorrectly treat nominal damages as a declaratory
judgment by another name and disregard the special purpose this remedy
serves in constitutional law.235 It is often difficult for plaintiffs to prove or
quantify the harm they have suffered from constitutional violations,236 but
233. See Davenport v. City of Sandy Springs, 138 S. Ct. 1326 (2018) (mem.) (denying
certiorari).
234. See supra Part I.A.4.
236. See, e.g., Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–75 (2009)
(discussing the “embarrassing, frightening, and humiliating” effects of a strip search on a
middle school student); Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (noting the feeling
the Supreme Court has held that these harms are absolute and appropriately
vindicated by nominal damages.237 By treating a lone claim for nominal
damages as insufficient to survive dismissal, courts are in violation of this
precedent.
The minority rules, particularly the bright-line approach, wrongly look to
whether there is an ongoing controversy or a prospective harm that can be
remedied rather than whether the plaintiff has alleged a past constitutional
violation. By only looking to the practical or prospective effect of nominal
damages, courts will allow past constitutional violations to go unvindicated.
This rule impermissibly treats nominal damages the same as declaratory
relief, despite their obvious differences.238 In addition, this rule ignores the
special purpose of nominal damages in constitutional law.239
Further, the minority rules impermissibly focuses on the plaintiff’s
underlying purpose for seeking nominal damages rather than determining
what remedies are available to the plaintiff based on the injuries he or she
alleges.240 The Eleventh Circuit, in Flanigan’s Enterprises, noted that the
complaint prayed predominantly for declaratory and injunctive relief and did
not ask for actual damages.241 That court’s inquiry into a plaintiff’s true
purpose or goal is impermissible under Powell v. McCormack.242 The Court
established in Powell that courts must hear cases where there is still an
available remedy, regardless of whether the remedy is secondary or
principal.243 Rather than look to what the complaint predominantly prays
for, the court should take a closer look at the claim for nominal damages itself
and determine whether the plaintiff sufficiently pled a past violation.
B. Taking a Closer Look

This Part proposes a new standard where courts take a second look at the
claim for nominal damages when the remaining remedies have become moot.
This Part first outlines why this standard is a more balanced approach than
the minority and majority rules. Then, this Part establishes that it is a
permissible standard under current Supreme Court precedent. Finally, this
Part argues that this conflict developed because of the lack of clarity from the
Supreme Court on mootness and proposes that the Supreme Court should
provide more clarity on the doctrine.
of inferiority that results from segregation); see also H.R. REP. NO. 96-1461, at 1 (1980)
(explaining that people whose individual rights have been violated should not be prevented
from seeking redress in federal court because their injury is not sufficiently economic).
237. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986); Carey v.
Piphus, 435 U.S. 247, 266 (1978).
240. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1264–65
& n.16 (11th Cir. 2017) (en banc), cert. denied sub nom. Davenport v. City of Sandy Springs,
138 S. Ct. 1326 (2018).
241. See id. at 1264–65.
242. 395 U.S. 486, 496 (1969).
243. See id.
1. This Flexible Test Is a More Balanced Approach Than

the Minority and Majority Rules
Instead of determining whether the court has jurisdiction based solely on
whether nominal damages have been pled, courts should determine whether
the plaintiff has pled a specific incident or deprivation where he or she was
affected by the challenged conduct.244 This inquiry would focus on whether
the plaintiff has sufficiently alleged an injury rather than whether a judgment
would have some prospective practical effect. This approach would prevent
courts from dismissing cases where individual rights may have been violated.
Courts would still be required to consider the specific incident that is alleged
to be a constitutional violation, which would ensure that nominal damages
function to remedy constitutional violations rather than as declaratory
judgments.
If the defendant is able to meet the high bar of the voluntary cessation
exception245 and the court finds the claims for declaratory judgment and
injunctive relief are moot, this should tip the scale in favor of dismissing the
claim for nominal damages as well. Where a defendant has proved the
challenged conduct will not recur, “judicial economy will dictate dismissal
without the necessity of reaching the constitutional point.”246 However,
“[t]here may be no mechanical rule for determining when the balance tips in
favor of dismissal, especially when the necessity of weighing other factors is
considered, but it is balancing that is required, not automatic dismissal.”247
Therefore, the court should take a second, closer look at the claim for nominal
damages and determine whether the plaintiff has sufficiently alleged a
particularized deprivation of his or her rights. For example, in Flanigan’s
Enterprises, the plaintiffs could have alleged that they attempted to purchase
the banned materials and, even though the statute was never enforced,
businesses that previously sold these items no longer did so after the statute
was enacted.248
244. Compare Soto v. City of Cambridge, 193 F. Supp. 3d 61, 71 (D. Mass. 2016) (noting
that the statute was never enforced and did not affect the plaintiff), with Fitzgerald v. City of
Portland, No. 14-CV-00053, 2014 WL 5473026, at *5 (D. Me. Oct. 27, 2014) (holding that
the plaintiff had shown there was an actual constitutional violation and the claim for nominal
damages should move forward).
245. Generally, cases are not dismissed as moot where the defendant voluntarily ceases the
challenged conduct unless the defendant has the burden to prove it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v.
Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)).
247. See id. at 1420.
248. See generally Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248
Ct. 1326 (2018).
The proposed standard is a slight shift from the incidental test previously
used by the Second Circuit.249 In the incidental test, the courts looked at the
underlying purpose of the suit to determine whether the claim for nominal
damages was incidental to the moot claims.250 However, rather than the
impermissible method that the Eleventh Circuit used,251 the Second Circuit
decided whether the claim for nominal damages was incidental by
determining whether the plaintiff was harmed or affected in any way by the
challenged conduct.252 This is similar to the approach currently used by the
district courts in the First Circuit.253
Adopting this test would not represent a major shift from the majority rule.
For instance, where the plaintiff has sufficiently alleged that the defendant
deprived him or her of a constitutional right, the court would be unable to
dismiss the case.254 This ensures that constitutional rights are vindicated by
the courts with the appropriate remedy. “[J]usticiability is ‘not a legal
concept with a fixed content’” rather it is a doctrine “of uncertain and shifting
contours.”255 And this rule would give courts more flexibility to determine
if there is jurisdiction and to avoid advisory opinions. This would ensure that
courts adjudicate claims based on a specific incident involving a policy or
statute rather than hypothetical facts. For example, if a statute is challenged
as unconstitutional but is later repealed, a court would be issuing an
impermissible advisory opinion on what the law should be without
adjudicating a specific incident.
This approach would not disrupt the availability of attorney’s fees as to the
cases that would be dismissed as moot because an award of nominal damages
does not automatically confer reasonable attorney’s fees.256 The Supreme
Court has held that a claim for nominal damages may not provide a basis for
249. See Kerrigan v. Boucher, 450 F.2d 487, 489–90 (2d Cir. 1971) (“[T]he claim for
nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis
upon which a court should find a case or controversy where none in fact exists.”).
250. See id.
251. See supra Part II.B.1.
252. See Kerrigan, 450 F.2d at 489–90 (holding that an award of nominal damages was
incidental because the plaintiff had already been made whole).
254. See Fitzgerald v. City of Portland, No. 14-CV-00053, 2014 WL 5473026, at *5 (D.
Me. Oct. 27, 2014) (holding that a claim for nominal damages was not moot because the
plaintiffs plausibly alleged a constitutional violation); supra Part III.A.
255. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 401 (1980) (first quoting Poe v.
Ullman, 367 U.S. 497, 508 (1961) (plurality opinion); then quoting Flast v. Cohen, 392 U.S.
83, 97 (1968)).
256. See Farrar v. Hobby, 506 U.S. 103, 117 (1992) (if the “victory is purely technical or
de minimis, a district court need not go through the usual complexities involved in calculating
attorney’s fees”); Amato v. City of Saratoga Springs, 170 F.3d 311, 317 n.5 (2d Cir. 1999)
(“[A] nominal damage award can be grounds for denying or reducing an attorney’s fee
award.”); see also Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–
93 (1989) (“The touchstone of the prevailing party inquiry must be the material alteration of
the legal relationship . . . . Where such a change has occurred, the degree of the plaintiff’s
overall success goes to the reasonableness of the award . . . not to the availability of a fee
award vel non.”).
attorney’s fees.257 However, most circuit courts have taken this to mean that
attorney’s fees are not automatically unavailable, but rather it is within the
courts discretion to determine if the fees are appropriate given the
circumstances.258 The proposed standard only applies to cases at the
periphery, where plaintiffs would be unable to show with particularity that
they were deprived of constitutional protections by the defendant. In these
instances, even if nominal damages were awarded, a court may determine
that the award of nominal damages is not a significant legal victory and be
less likely to award attorney’s fees.259
This flexible approach properly balances judicial economy and separation-
of-powers concerns while still vindicating plaintiffs’ constitutional rights.
First, this test prevents impermissible advisory opinions based on
hypothetical facts.260 Further, this flexible rule allows courts to dismiss cases
where there is not a sufficient basis to continue to hear the case. Additionally,
plaintiffs cannot manipulate jurisdiction under this rule.261 Plaintiffs would
not be able to save the case merely by adding nominal damages as an
additional remedy. Instead, they would have to allege a specific
constitutional deprivation.
2. A Closer Look Is Permissible Under Supreme Court Precedent
The proposed flexible standard is more aligned with Supreme Court
precedent than the minority and majority rules. This test is permissible under
the Supreme Court’s ruling in Carey v. Piphus. In that case, the Supreme
Court held that, where the plaintiff proves a constitutional violation but
cannot prove a compensable injury, the plaintiff’s award is limited to
nominal, rather than compensatory, damages.262 The plaintiffs were
specifically denied their due process right to a hearing, which would
constitute a deprivation under this test.263 Therefore, here, where the
plaintiffs sufficiently alleged an actual constitutional deprivation, the court
would not have the discretion to dismiss the case. However, where the
plaintiff is unable to do so—for example, because the statute was not
enforced nor abided by—the court would be permitted to dismiss the claim
as moot.
257. Farrar, 506 U.S. at 113–17.

258. See Jama v. Esmor Corr. Servs., Inc., 577 F.3d 169, 176 (3d Cir. 2009) (“[W]e find
no case in which a court of appeals has interpreted Farrar to require the automatic denial of
fees . . . when only nominal damages are awarded.”); Bos.’s Children First v. City of Boston,
395 F.3d 10, 18 (1st Cir. 2005) (denying attorney’s fees where a nominal damages award was
“a minimal success” and “d[id] not represent a victory on a significant legal issue”).
259. See, e.g., Bos.’s Children First, 395 F.3d at 18 (denying attorney’s fees where a
nominal damages award was “a minimal success” and “d[id] not represent a victory on a
significant legal issue”).
Ct. 1326 (2018).
261. See id. at 1270.
262. See Carey v. Piphus, 435 U.S. 247, 254–55 (1978).
263. See id.
Further, the Court’s ruling in in Arizonans for Official English supports a

more exacting standard than the majority rule.264 In that case, the Supreme
Court briefly touched upon the issue of nominal damages and mootness.265
The Court ultimately dismissed the case as moot because nominal damages
were an improper remedy266 and the state was not a proper party to the
case.267 The Court chastised the Ninth Circuit for reading in a claim for
nominal damages, which the plaintiffs did not request in the complaint and
clearly added later only to save the case from dismissal—circumstances that
deserved “close inspection.”268 This case implies that a claim for nominal
damages may save an otherwise moot case but notes that these claims should
be scrutinized.269 Taking a closer look at the underlying claim is consistent
with the court’s reasoning and serves to ensure that the nominal damages are
not pled to manipulate jurisdiction, but allows courts to hear factually
supported claims.
C. The Supreme Court Should Clarify the Distinction Between

Prudential and Constitutional Mootness
One of the underlying reasons why this conflict developed is the unclear
boundary of mootness.270 The blended constitutional and prudential
considerations have caused confusion among courts.271 Courts are unable to
differentiate between cases that are dismissed as moot because of
constitutional restrictions or for discretionary prudential reasons. For
example, courts cite prudential reasons for both deciding a moot case272 and
dismissing a case as moot.273 Generally, in the federal courts, mootness has
centered on the requirements necessary to adjudicate a case on the merits.274
The minority rule uses the doctrine of mootness to avoid adjudicating the
264. 520 U.S. 43, 71 (1997).

265. See id.; see also Freedom from Religion Found., Inc. v. New Kensington Arnold Sch.
Dist., 832 F.3d 469, 486 (3d Cir. 2016) (Smith, J., concurring) (noting that the Supreme Court
has not addressed this issue and the only case where the Court has discussed nominal damages
and justiciability is Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)).
266. See Arizonans for Official English, 520 U.S. at 68–69.
267. See id. at 64–65.
268. See id. at 71.
269. See New Kensington Arnold Sch. Dist., 832 F.3d at 486–87 (Smith, J., concurring)
(discussing how Arizonans for Official English implies that nominal damages will sometimes
support an otherwise moot claim, but noting that attempts to save jurisdiction through a claim
for nominal damages should be subject to scrutiny).
270. See supra Part I.B.2.a.
271. This confusion is most apparent in Flanigan’s Enterprises where the court tried to
develop a flexible standard that aims to balance vindicating constitutional rights and judicial
economy but fails to abide by Supreme Court precedent. See supra Part III.A (discussing how
the minority rule is impermissible); see also Flanigan’s Enters., Inc. of Ga. v. City of Sandy
Springs, 868 F.3d 1248, 1272–73 (11th Cir. 2017) (en banc) (Wilson, J., dissenting)
(discussing how the majority opinion contradicts Supreme Court precedent), cert. denied sub
nom. Davenport v. City of Sandy Springs, 138 S. Ct. 1326 (2018).
274. See supra Part I.B.2.a; see also North Carolina v. Rice, 404 U.S. 244, 246 (1971).
merits of a case.275 The Supreme Court should provide guidance and clarity
on the boundaries and scope of constitutional and prudential mootness.
Specifically, the Court should address when, if ever, judicial economy
considerations might dictate dismissal of justiciable claims as moot.
As highlighted by the exceptions to mootness, courts usually rely on
prudential mootness to reach the merits of the case. However, the courts
applying the minority rule use prudential mootness as a doctrine to avoid
adjudication. These courts touch upon the Constitution, but they rely
primarily on whether there is an effective judicial remedy, similar to the
common-law doctrine of mootness.276 The common law focuses on the
court’s ability to practically effect a dispute, beyond just determining the
merits of the case.277 Courts further justify dismissing claims as moot
because litigation wastes judicial resources278 and trivializes the business of
federal courts.279 These reasons highlight lower courts’ need for Supreme
Court guidance on the boundaries of prudential and constitutional mootness.
Some scholars have called for a purely prudential doctrine of mootness.280
A purely prudential doctrine would allow courts to dismiss any moot case or
claim in its discretion.281 These scholars argue that courts adhere blindly to
the mootness doctrine because they believe it is a constitutional limitation,
rather than a judicially created doctrine.282 Although a justification for this
application of mootness is judicial economy, when a case is dismissed at the
appellate-court level, all the time and resources that have been invested in
this case have been wasted.283 The purely prudential doctrine would allow
courts to consider what has been invested in the case before dismissing it.
However, this model would be a drastic shift from the current doctrine,
which is “embedded in the case-or-controversy limitation imposed by the
275. See supra Part II.B.

276. See Note, supra note 111, at 1674–76.
277. See id.
278. See Husain v. Springer, 494 F.3d 108, 136 (2d Cir. 2007) (Jacobs, C.J., concurring in
part and dissenting in part) (discussing the wasted time and resources for a verdict of two
dollars).
279. See Morrison v. Bd. of Educ., 521 F.3d 602, 611 (6th Cir. 2008).
280. See Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness,
105 HARV. L. REV. 603, 623–25 (1992); Robert J. Pushaw, Jr., Justiciability and Separation
of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 490 (1996); Kristen M.
Shults, Comment, Friends of the Earth v. Laidlaw Environmental Services: A Resounding
Victory for Environmentalists, Its Implications on Future Justiciability Decisions, and
Resolution of Issues on Remand, 89 GEO. L.J. 1001, 1036 (2001).
281. See infra note 292 and accompanying text.
282. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J.
1363, 1365, 1397 (1973) (discussing doctrines including mootness as a rule of self-denial);
Note, The Mootness Doctrine in the Supreme Court, 88 HARV. L. REV. 373, 375 n.12 (1974)
(noting that the Supreme Court did not offer an explanation or authority for characterizing
mootness as a constitutional doctrine, and that later courts accepted this characterization by
citing to Supreme Court decisions).
283. Cf. Kates & Barker, supra note 95, at 1433–34 (arguing that judicial economy is
concerned with the allocation of resources that have not been used rather than resources that
have already been expended).
Constitution.”284 This model unhinges a limitation on judicial power from

the Constitution and would mean that the judiciary would be self-policed
with only policy considerations to rely on.285 This would likely compound
the issues with the current doctrine and lead to a system with even less
guidance and consistency.
Additionally, the Court could hold that the doctrine is purely a
constitutional doctrine that is firmly ingrained in Article III. Although courts
would be able to consider the prudential aspects of mootness under this
model, the prudential aspects would never be able to override the
constitutional limitations.286 To hold that this doctrine is primarily
constitutional and cannot be overridden would undermine courts’ ability to
use the exceptions to this doctrine.287 In addition, the Court has
acknowledged the prudential aspects of this doctrine by noting that the
starting point of this doctrine is grounded in the Constitution while holding
that it is permissible to reach the merits of the case when prudential
considerations are compelling.288
Finally, the Court could adopt a model which recognizes the dual policy
and constitutional considerations of the doctrine.289 Adopting this dichotic
model would help guide federal courts in determining when they are required
to dismiss a case as moot, or when dismissal is within their discretion.290
This would allow courts to determine in their discretion whether there are
prudential reasons to dismiss the case as moot or compelling reasons to allow
the claim to move forward.
One way the Court could recognize the dual aspects of this doctrine would
be by recognizing the implicit distinction between cases where the issue has
become moot and where the plaintiff no longer has a personal stake.291 One
commentator argues that courts already implicitly treat these two types of
cases differently,292 so adopting this model would not be a shift in the law
but rather would provide more guidance and require courts to be explicit in
their analysis. Where the issue has become moot, the court lacks jurisdiction
and is required by the Constitution to dismiss the case as moot.293 Where the
284. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 412 (1980) (Powell, J.,
dissenting); see also Honig v. Doe, 484 U.S. 305, 329 (1988) (Rehnquist, C.J., concurring)
(noting that courts have held that the mootness doctrine is constitutionally required for
decades).
285. See Note, supra note 111, at 1677 n.29 (arguing that the constitutional aspect of this
doctrine ensures cases are presented in a form “traditionally thought to be capable of judicial
resolution”).
286. See Honig, 484 U.S. at 329 (Rehnquist, C.J., concurring).
287. See supra Part I.B.2.b for a discussion of how the exceptions are an anomaly to the
idea that mootness is a mandatory constitutional doctrine.
288. See Geraghty, 445 U.S. at 406 n.11.
289. See Greenstein, supra note 85, at 898–900; Note, supra note 111, at 1672.
291. See id.
292. See id.; see, e.g., Geraghty, 445 U.S. at 400–01 (holding that an action brought on
behalf of a class does not become moot when the class representative’s claim becomes moot).
plaintiff’s personal stake has become moot, the court has the discretion to
decide to dismiss the case as moot.294
This model is consistent with the underlying policy of mootness. In
Flast,295 Chief Justice Warren explained that the jurisdictional requirements
serve a two-fold purpose: to limit the questions presented to federal courts
to ones in an adversarial context and to ensure separation of powers.296 The
personal stake and issue requirements are connected to the adversarial
requirement.297 Where the issue has become moot, such as where a statute
has been repealed, the plaintiff may not advocate as effectively because he
or she may not be motivated to bring the same effort needed to succeed as
one who is facing an unfavorable outcome—like the statute being upheld.298
Conversely, where the plaintiff’s personal stake has become moot, such as
where the passage of time has mooted injunctive and declaratory relief and
there is no claim for damages, the plaintiff may continue to be motivated to
pursue her claim in order to vindicate her constitutional rights.
Applying such a rule to the conflict central to this Note would provide
significantly more clarity to courts. For example, allowing courts to have
this explicit discretion would prevent the unnecessarily complicated, and
incorrect, constitutional analysis that the Eleventh Circuit developed to avoid
determining the merits of Flanigan’s Enterprises.299 If the Eleventh Circuit
had the discretion to dismiss cases where the issue had become moot for
prudential reasons—such as where a statute has been repealed—the court
could have done so here, avoiding an incorrect constitutional analysis.
CONCLUSION
The conflict that has developed—whether or not to allow a claim for
nominal damages to proceed when the claim is otherwise moot—has
potentially allowed constitutional rights to go unvindicated. Part of the
reason this conflict has developed is because of the lack of clarity in the
doctrine of mootness. A minority of courts have sought to dismiss these
claims for prudential reasons, which they have styled as dismissals for lack
of jurisdiction. Meanwhile, a majority of courts have held that complaints
that have plausibly alleged a claim for nominal damages are sufficient for
federal courts to exercise jurisdiction. The Supreme Court should clarify the
doctrine of mootness and explain when dismissal is permissible and when it
is mandatory. Regardless of whether the Court takes up that issue, courts
should adopt the flexible standard proposed in this Note, which will allow
them to balance the competing concerns of judicial economy and vindicating
plaintiffs for violations of their constitutional rights.
294. See id. at 600; see, e.g., Geraghty, 445 U.S. at 400–01; Sosna v. Iowa, 419 U.S. 393,
401–02 (1975); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972).
295. 392 U.S. 83 (1968).
296. See id. at 95.
297. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990).
298. See Kates & Barker, supra note 95, at 1409; Note, supra note 96, at 773.
299. See supra Part III.A.

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Fordham Law Review

Volume 87 Issue 2 Article 8

A Dollar for Your Thoughts: Determining Whether Nominal

Follow this and additional works at: https://ir.lawnet.fordham.edu/flr

Part of the Civil Law Commons, and the Jurisprudence Commons

This Note examines whether nominal damages should sustain an otherwise

B. Determining Federal Jurisdiction: What Is a Proper

4. See infra note 75 and accompanying text.

I. AN OVERVIEW OF REMEDIES AND FEDERAL JURISDICTION

duty.18 However, different categories of damages serve distinct purposes.19

to test the constitutionality of statutes without fear of prosecution.29 Without

3. Nominal Damages: Why Bother Suing for One Dollar?

reasonable attorneys’ fees under certain statutes.58 Because there is a chance

constitutional right but is unable to demonstrate a compensable injury. In

B. Determining Federal Jurisdiction: What Is a Proper Dispute?

66. See Carey, 435 U.S. at 266.

76. 392 U.S. 83 (1968).

a. Beyond Article III: The Unclear Boundary of Prudential Mootness

jurisprudence that fall outside the boundary of constitutional mootness

b. Mootness Exceptions: Illuminating the Prudential Aspects of Mootness

II. WHAT IS A SUFFICIENT DISPUTE?

A. Majority Rule: Nominal Damages Are Always Sufficient

B. Minority Rule: A Functionalist Approach

157. See id. at 717.

appellants to seek a rehearing en banc to overturn the precedent.166 After the

validation of an outcome that has already been determined.182 However, this

182. See Flanigan’s Enters., 868 F.3d at 1268.

otherwise live dispute or harm to be vindicated.204 This approach is also

204. See Soto, 193 F. Supp. 3d at 71.

judicial resources and resources of municipalities and plaintiffs’ ability to

III. BALANCING JUDICIAL ECONOMY AND VINDICATING

A. The Minority Rule Is Overbroad and Impermissible

B. Taking a Closer Look

1. This Flexible Test Is a More Balanced Approach Than

257. Farrar, 506 U.S. at 113–17.

Further, the Court’s ruling in in Arizonans for Official English supports a

C. The Supreme Court Should Clarify the Distinction Between

264. 520 U.S. 43, 71 (1997).

275. See supra Part II.B.

Constitution.”284 This model unhinges a limitation on judicial power from

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