By Jana Kalyan Das, Sandeep Devashish Das and Ninad Dogra
On March 8, in a seemingly run of the mill case, the Supreme Court of the United States of America by a 8 to 1 majority, delivered its judgment, quashing and setting aside both the judgments of the District Court and the Federal Circuit Court of Appeal. Justice Clarence Thomas delivered the opinion of the Court joined by other associate justices: Justice Breyer, Justice Alito, Justice Sotomayor, Justice Gorsuch, Justice Kavanaugh and Justice Barret. Justice Kavanaugh, filed a separate concurring opinion. Significantly, Chief Justice of the United States John Roberts delivered the lone dissenting opinion.
The judgment created a flutter in legal circles. In more than 15 years on the bench, Justice Roberts had never earlier filed a solitary dissenting opinion. Like Chief Justice Fred Vincent, he had enjoyed the unique reputation of always carrying the Court with him.
On the surface, the case was not a high profile one. Nevertheless, many feel that the judgment has marked a significant doctrinal shift in the Court’s approach underlining the chief justice’s isolation from his fellow judges.
The New York Times reported that the judgment was “a fitting symbol of the Chief Justice’s reversal of fortune after the appointment of Justice Amy Coney Barrett”.
Be that as it may, the facts first. Two Evangelical Christian students of a Georgia Government College, Uzuegbunam and his friend Joseph Bradford, had been denied the opportunity to preach and propagate their religious views on the campus. The prevailing college campus policy prohibited using the “free speech zone” of the campus to say anything that disturbs the peace and/or comfort of person(s).
Both the students sued certain college officials who were in charge of enforcement of college speech policies. They submitted in their petition that the above college policies violated their First Amendment Rights. The students sought injunctive relief and nominal damages.
While the case was at the stage of pleadings, the college discontinued the challenged policies and sought dismissal of the case on the ground that the policy having been withdrawn left the students without standing to sue as per the requirements of Article III of the US Constitution. The District Court dismissed the case holding that the students’ claim for nominal damages was insufficient by itself to establish standing. The 11th Circuit Court of Appeal also affirmed the decision of the District Court by holding that a request for nominal damages can save a case from becoming “infructuous/mootness” in certain circumstances i.e. where a person pleads but fails to prove an amount of compensatory damages. However, since, the students did not request compensatory damages, their plea for nominal damages alone was insufficient to satisfy the requirements of “standing”.
The matter was thereafter carried to the American Supreme Court. The legal question which arose for determination by the Court was whether the students had standing to maintain the suit based on their remaining claim for nominal damages. Eight out of nine judges i.e. excluding the chief justice rejected the reasoning of the courts.
Relying upon the historical development of the law of damages under the common law jurisprudence they held: “But cases at common law paint a different picture. Early courts required the plaintiff to prove actual monetary damages in every case in keeping with the principle….injuria & damnum [injury and damage] as the two grounds for the having [of] all actions, and without these, no action lieth as held in the case of Cable vs Rogers. Later courts, however, reasoned that every legal injury necessarily causes damage, so they awarded nominal damages absent evidence of other damages (such as compensatory, statutory, or punitive damages). They did so where there was no apparent continuing or threatened injury for nominal damages to redress.”
This view was taken in the case of Barker vs Green, 2 Bing. In the case of Barker, nominal damages was awarded for one day delay in arrest because the court felt that “if there was a breach of duty the law would presume some damage”.
The majority opinion also noticed that the latter approach in Barker was consistently followed by the American Courts both before and after ratification of the American Constitution. In doing so, the judges were in complete agreement with the views of Lord Holt who had held that the common law inferred damages whenever a legal right was violated. Observing that the law recognised “not merely pecuniary” injury but also “personal injury,” Lord Holt had earlier stated that “every injury imports a damage” and that a plaintiff could always obtain damages even if he “does not lose a penny by reason of the violation”.
The judges also noted with approval that the view held by Lord Holt of the House of Lords was followed in many subsequent cases in USA. A specific reference was made to the earlier judgement authored by Justice Story (the youngest judge to be appointed to the American Supreme Court till date). In the case of Webb vs Portland Mfg. Co., Justice Story had reasoned that wherever there is a wrong, the doctrine of entitlement to nominal damages applies. It is attracted in every case where there is not only a violation of a right of the plaintiff, but also on account of the fact that the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right. Applying what he called Lord Holt’s “incontrovertible” reasoning, Justice Story had explained that a prevailing plaintiff “is entitled to a verdict for nominal damages” whenever no other [kind of damages] be proved. Justice Story had thus concluded that “the law tolerates no farther inquiry than whether there has been the violation of a right.”
All the eight justices were in complete agreement with the aforesaid reasoning of Justice Story in their judgement/opinion. The majority also rejected the arguments of the respondents that a claim for compensatory damages is a prerequisite for an award of nominal damages. They were of the opinion that the said arguments of the respondents rest on the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff. The majority held that despite being small, nominal damages are certainly concrete and that a party who is awarded nominal damages receives “relief on the merits of his claim” and “may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages.” The majority further reasoned that it may be true that a single dollar often cannot provide full redress, but the ability “to effectuate a partial remedy” satisfies the redressability requirement under the law.
The college had also argued that if a mere claim for nominal damages could satisfy the requirements of standing then a simple claim for attorney’s fees or costs would make a suit maintainable even when the main relief had become infructuous. Rejecting such submissions, the majority held that a request for attorney’s fees or costs cannot establish standing because those awards are merely a “byproduct” when a suit succeeds and is not a form of redressability. In contrast, nominal damages are redress, and not a byproduct. Dispelling the apprehension that such a liberal interpretation of Article III requirements of standing would open the flood gates for endless litigations, the majority judgements/clarified by holding thus “this is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action”.
Chief Justice John Roberts, however, was at pains to dissent. Elaborating upon the limited role of the judiciary under the scheme of separation of powers of the American Constitution and quoting extensively from Federalist Paper No.78 of Alexander Hamilton, one of the founding fathers of the Constitution, the chief justice in his dissent referred to the case of Flast vs Cohen (1968) and held that to decide a moot case would amount to giving an advisory opinion, in violation of “the oldest and most consistent thread in the federal law of justiciability.”
Justice Roberts was also of the view that the case-or-controversy requirement imposes fundamental restrictions under the law on who can invoke federal jurisdiction and what types of disputes federal courts can resolve and when it is impossible for a court to grant any effectual relief whatever to the prevailing party the case is moot, i.e. infructuous and the court has no power to decide it.
The chief Justice further reasoned that the standards and yardsticks of common law cases applied by English courts cannot be mechanically imported into American jurisprudence. In his dissenting judgement he held: “Any lessons that we learn from the common law, however, must be tempered by differences in constitutional design. The structure and function of 18th century English courts were in many respects irreconcilable with the role assigned to the judiciary in a tripartite allocation of power as is the case in USA”. Perhaps most saliently, in England “all jurisdictions of courts [were] either mediately or immediately derived from the crown, an organisational principle the Framers of the American Constitution explicitly rejected by separating the Executive from the Judiciary. This difference in organization has yielded a difference in operation. Since, the petitioners, in the facts of the case, initially asked for a declaratory judgment and preliminary injunction but subsequently abandoned those requests once the college withdrew the challenged policies and since the students did not claim prospective reliefs it was legally inappropriate to hold that the case was not moot/infructuous.
The Chief Justice in his dissenting judgment/opinion also noted that the reliance of the majority on the opinion of Justice Story was misplaced, in as much as, subsequently Justice Story had completely changed his earlier reasoning given in the case of Webb vs Portland Mfg. Co. Having held thus, the chief justice concluded: “Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals”.
In the result, the American Supreme Court summarised the law and decided that nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms. However, the majority did not decide whether Bradford can pursue nominal damages in the facts of his case and left the question to be determined by the District Court.
—Jana Kalyan Das is a senior advocate of the Supreme Court, while Sandeep Devashish Das and Ninad Dogra are AoRs there