Nahmod Law

I address the following questions about section 1983 and nominal damages for constitutional violations in this post. First, what are nominal damages? Second, does a section 1983 plaintiff who seeks only nominal damages have standing and thereby avoid mootness? And third, can attorney’s fees be awarded when a section 1983 plaintiff receives only a nominal damages award?

What Are Nominal Damages?

Nominal damages of $1 are awarded when a section 1983 plaintiff who seeks compensatory damages proves that a defendant has violated his or her constitutional rights, but is unable to persuade the fact-finder, typically a jury, that the plaintiff suffered actual damages of any kind, whether physical and financial (“special” damages) or psychological (“general” damages). Such an award indicates that the plaintiff indeed has prevailed on his or her constitutional claim even though actual compensatory damages were not awarded. As discussed below, it can be the basis of an attorney’s fees award under section 1988, the Civil Rights Attorney’s Fees Awards Act.

Note that presumed damages are not permitted in section 1983 cases. Carey v. Piphus, 435 U.S. 247 (1978); Memphis v. Stachura, 477 U.S. 299 (1986). Note also that a section 1983 plaintiff who receives a nominal damages award may be entitled to a punitive damages award as well if the defendant’s unconstitutional conduct was engaged in recklessly or with callous disregard of the plaintiff’s constitutional rights. However, such a punitive damages award is not likely to be substantial. On section 1983 compensatory and punitive damages generally, see ch. 4 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition)(West, Westlaw).

Can A Section 1983 Plaintiff Seek Only Nominal Damages? The Supreme Court Says Yes

Almost always a section 1983 plaintiff who is awarded nominal damages has initially but unsuccessfully sought actual damages. The argument has been made that a section 1983 plaintiff who seeks only nominal damages does not have standing to bring such a claim and that, therefore, if all he or she has left is such a nominal damages claim, the case is moot. Consequently, the argument goes, such a suit should be dismissed on Article III justiciability grounds.

The Supreme Court weighed in on this issue in Uzuegbunam v. Preczewski, 142 S. Ct. — (2021). In an opinion by Justice Thomas, the Court ruled that a section 1983 plaintiff who seeks only nominal damages to vindicate the deprivation of a constitutional right does indeed have standing and therefore avoids mootness under Article III. In this case the plaintiff, a former student, brought section 1983 Free Exercise Clause claims for injunctive relief and nominal damages against public college officials who did not allow him to distribute written religious material or speak on campus.

The officials subsequently abandoned their challenged policies and then argued that the plaintiff’s claims were moot. The Supreme Court agreed with the officials that the plaintiff’s injunctive relief claim was moot but, on the other hand, agreed with the plaintiff that his claim for nominal damages conferred standing and thus the claim was not moot. Justice Thomas relied on the common law for the proposition that a plea for compensatory damages is not required for an award of nominal damages. Also, a section 1983 plaintiff seeking only nominal damages satisfies the Article III standing requirement of redressability, even if such an award does not provide full redress. Finally, this constitutes relief on the merits. For these reasons, the plaintiff’s section 1983 nominal damages claim for his Free Exercise deprivation was not rendered moot, even though his injunctive relief claim was.

Chief Justice Roberts dissented, arguing that “if nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.” Justice Kavanaugh concurred, saying he agreed with the Chief Justice “that a defendant should be able to accept the entry of a judgment for nominal damages and thereby end the litigation without a resolution on the merits.”

Can Attorney’s Fees Be Awarded When a Section 1983 Plaintiff Receives Only A Nominal Damages Award? The Supreme Court Says Yes…But

Since we now know that nominal damages can be awarded to a section 1983 plaintiff for a constitutional deprivation even where that plaintiff seeks only such damages, what are the implications for an award of attorney’s fees under section 1988?

The Supreme Court dealt with this issue thirty years ago in Farrar v. Hobby, 506 U.S. 103 (1992), where it held, in an opinion by Justice Thomas (the author of Uzuegbunam), that a section 1983 plaintiff who seeks substantial compensatory damages but only gets nominal damages is still a “prevailing party” entitled to attorney’s fees. However, in the case before it, the Court determined that because the plaintiff had originally sought $17 million(!) in compensatory damages but was ultimately awarded $1 in nominal damages, the appropriate fees award was nothing. Justice O’Connor concurred in an influential opinion, arguing that there may be section 1983 nominal damages cases where the prevailing plaintiffs are entitled to reasonable fees awards because, unlike in Farrar, their victories are more than de minimis.

See generally on attorney’s fees, ch. 10 of my section 1983 Treatise, noted above.

Comments

1. I think what initially attracted the Court to grant certiorari was the fact that the plaintiff’s claim involved the Free Exercise Clause, as to which the Eleventh Circuit had ruled that a claim for only nominal damages does not confer standing. To understate the matter, the current Court is very sensitive to Free Exercise claims, especially in cases where plaintiffs and their attorneys may be more interested in establishing a legal principle than in receiving a substantial damages award. Further, Free Exercise Clause claims generally not give rise to much in the way of compensatory damages, especially “special” damages, with the result that plaintiffs may choose to avoid the hassle of trying to show some actual damages but instead decide to proceed directly, so to speak, to nominal damages.

2. Justice Thomas wrote both the opinion in Uzuegbunan and the opinion in Farrar. I wonder whether the apparent tension between the two regarding the importance of a nominal damages award suggests that Justice Thomas is retreating from his broad declaration in Farrar that, where a section 1983 plaintiff receives only a nominal damages award, the appropriate fees award is nothing. Of course, one obvious distinction between the two cases in that in Farrar, the section 1983 plaintiff asked for the moon and got nothing, unlike in Uzuegbunam, where the plaintiff sought to establish a Free Exercise principle. In any event, I doubt such a retreat by Justice Thomas.

3. Finally, a section 1983 plaintiff who seeks only nominal damages must still prove a constitutional violation and a causal connection to the defendant’s conduct, as well as overcome defense assertions of absolute and qualified immunity. These are not easy tasks.

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