Uzuegbunam v. Preczewski, Nominal Damages, and the Roberts Stratagem

• Jurisdiction: United States,Federal
• Citation: Vol. 56 No. 3
• Publication year: 2022

Uzuegbunam v. Preczewski, Nominal Damages, and the Roberts Stratagem

Michael Wells
University of Georgia School of Law, mwells@uga.edu

Uzuegbunam v. Preczewski, Nominal Damages, and the Roberts Stratagem

Cover Page Footnote
Carter Professor, University of Georgia School of Law. The author benefited from comments on a draft by participants in the 2021 U. Ga.-Emory summer workshop and the joint Remedies-Federal Courts session at the 2022 AALS annual meeting. He especially thanks Dan Coenen and Fred Smith for their help.

UZUEGBUNAM V. PRECZEWSKI, NOMINAL DAMAGES, AND THE ROBERTS STRATAGEM

Michael L. Wells^*

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In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff's request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government's discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority's ruling clashed with Article Ill's "personal stake" requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint centered on securing prospective injunctive relief. He also asserted that defendants in the future could dodge the Court's ruling by simply depositing one dollar into a bank account in the plaintiff's name, thus negating the existence of a continuing case or controversy by fully satisfying the plaintiff's only remaining request for relief. The Court in Uzuegbunam did not address this question. Justice Kavanaugh and the Solicitor General, however, have agreed that defendants can rid themselves of § 1983 nominal-damages suits by putting this tactic—which I call the "Roberts Stratagem"—to use.
In this Article, I argue they are wrong. The linchpin of my argument is that the benefits of § 1983 nominal-damages litigation are substantial. More specifically, I contend that those benefits so greatly outweigh any countervailing costs that plaintiffs, as a rule, should be able to press forward with claims for nominal damages even in the face of a defendant's attempted use of the Roberts Stratagem. At bottom, the Chief Justice underestimates the importance both to victims of

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government wrongdoing and to society as a whole of the federal courts' vindication of fundamental constitutional rights. He also fails to appreciate that other means exist for curbing any threat to Article III values posed by the majority's validation of nominal-damages suits. In the end, the Chief Justice rightly emphasizes the importance of those values. But he also seeks, in this context, to safeguard them in far too crude of a way.

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Table of Contents

I. Introduction..................................................................1130

II. Article III Objections to Nominal Damages Litigation .............................................................................................1137

A. redressability in uzuegbunam...............................1139

1. Nominal Damages and the Common Law..........1140
2. Shortcomings of the Common Law Model..........1141

B. separation of powers and nominal damages.......1142

1. Advisory Opinions................................................1144
2. Nominal Damages and Standing to Sue............1146
3. Federal Jurisdiction After Uzuegbunam............1148

III. Nominal Damages in § 1983 Litigation....................1149

A. tensions between article iii values and nominal damages for constitutional claims....................1150
B. the value of nominal damages.............................1153

1. Remedial Equilibration.......................................1154
2. Backward-Looking Constitutional Remedies......1156
3. Gaps in the Efficacy of Compensatory Damages 1159
4. Vindication, Deterrence, and Nominal Damages 1164
5. Roadblocks to Recovery........................................1170

IV. Limits on Nominal Damages Litigation...................1172

A. the uzuegbunam/bradford distinction................1173

1. Article III Costs and the Prospective/Retrospective Distinction ............................................................. 1174
2. Comparing Uzuegbunam's and Bradford's Interests in Vindication....................................................... 1178

B. federal statutory rights.......................................1180

1. Statutory vs. Constitutional Rights.....................1181
2. Section 1983 "Laws" Litigation...........................1184

V. Conclusion....................................................................1186

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I. Introduction

In Uzuegbunam v. Preczewski, the Supreme Court held that a prayer for nominal damages satisfies Article III's requirement that the requested relief "redresses" the plaintiff's injury.¹ The Court "look[ed] to the forms of relief awarded at common law,"² found that "nominal damages were available at common law in analogous circumstances,"³ and "conclude[d] that a request for nominal damages satisfies the redressability element of standing when a plaintiff's claim is based on a completed violation of a legal right."⁴ It made no difference that a change in government policy had mooted the plaintiff's request for injunctive relief, precisely because nominal damages remained available.⁵

Uzuegbunam was the Court's first ruling on the role of nominal damages in § 1983 litigation in more than four decades.⁶ In its 1978 decision in Carey v. Piphus, the Court adopted the common law "compensation principle" for litigation under 42 U.S.C. § 1983 for procedural due process violations by officials, local governments, and others acting "under color of state law.⁷ Under the

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compensation principle, recovery requires proof of lost income, medical expenses, emotional distress, or other harm.⁸ Carey addressed only procedural due process.⁹ Eight years after Carey, in Memphis Community School District v. Stachura, the Court rejected any sharp distinction between procedural and substantive constitutional rights.¹⁰ Stachura had won a substantial jury verdict for a violation of his First Amendment rights, but the Supreme Court reversed because of jury instructions that allowed recovery for the "abstract value of a constitutional right," measured by such factors as a particular right's "importance . . . in our system of government."¹¹ These instructions were faulty because they "focus[ed], not on compensation for provable injury, but on the jury's subjective perception of the importance of constitutional rights as an abstract matter."¹² Rigid application of the "compensation principle" would seem to preclude any award of nominal damages.

At the end of the Carey opinion, however, the Court acknowledged a role for nominal damages in constitutional tort law in order to "vindicate[] . . . rights that are not shown to have caused actual injury."¹³ In the decades since Carey and Stachura, nominal

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damages have grown in importance in § 1983 litigation in the lower federal courts. Uzuegbunam is an important case because the realities of constitutional tort litigation disfavor substantial economic recoveries for most plaintiffs. Unless the case arises in a business context,¹⁴ or involves outrageous and well-publicized facts,¹⁵ plaintiffs who win on the substantive merits often have difficulty proving compensatory damages under the Carey/Stachura rules. Many juries award only nominal damages.¹⁶ Nominal

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damages may seem "trivial,"¹⁷ like a "consolation prize"¹⁸ or "a legal fiction."¹⁹ Judge Richard Posner once claimed that if a plaintiff "goes around bragging" that he won nominal damages of $1, "he'll be laughed at."²⁰ But they do vindicate the plaintiff's rights,²¹ at least

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to some extent,²² and they can support an award of attorney's fees, as even Judge Posner acknowledged.²³

To be sure, the benefits provided by nominal damages come at a cost. Article III principles disallow federal jurisdiction in cases that are moot,²⁴ in part to avoid a proliferation of requests for advisory opinions and assure adherence to a proper separation of powers.²⁵ In Chief Justice Roberts's view, as expressed in his dissent in Uzuegbunam, the case was moot once the challenged policy was dropped because "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to."²⁶ He worried that removing the mootness check on the jurisdiction of the federal courts "risks a major expansion of the judicial role."²⁷ He also warned that the majority opinion's holding would turn the Court into "the least expensive source of legal advice."²⁸ Roberts's objections might be considered overwrought. A different outcome in Uzuegbunam would not necessarily prevent much of the litigation he fears because—as he acknowledged—plaintiffs who credibly claim past injury have standing to sue.²⁹ Even so, the practical impact of the ruling is significant. In effect, Uzuegbunam eliminates any need to claim past injury, as opposed to a past constitutional

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violation, thus expanding the set of plaintiffs able to assert § 1983 claims.

Though no other member of the Court joined the Chief Justice's dissent, his views should not be discounted. Roberts proposed a tactic that would undermine the utility of nominal damages as a means for vindicating rights. He suggested that, faced with a nominal-damages-only case like Uzuegbunam, a defendant may avoid a ruling on the merits of the constitutional issue by simply depositing $1 in a bank account in the plaintiff's name, even against the plaintiff's wishes.³⁰ For convenience, call this the Roberts Stratagem, as it is a recurring theme in this article. Justice Kavanaugh joined the Court's opinion but also wrote separately to endorse the Chief Justice's view on this point.³...