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Brief for Petitioners NO. 19-968 IN THE Supreme Court of the United States CHIKE UZUEGBUNAM AND JOSEPH BRADFORD, Petitioners, v. STANLEY C. PRECZEWSKI, JANN L. JOSEPH, LOIS C. RICHARDSON, JIM B. FATZINGER, TOMAS JIMINEZ, AILEEN C. DOWELL, GENE RUFFIN, CATHERINE JANNICK DOWNEY, TERRANCE SCHNEIDER, COREY HUGHES, REBECCA A. LAWLER, AND SHENNA PERRY, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF FOR THE PETITIONERS DAVID A. CORTMAN KRISTEN K. WAGGONER TRAVIS C. BARHAM Counsel of Record JEREMIAH J. GALUS JOHN J. BURSCH KATHERINE L. ANDERSON TYSON C. LANGHOFER ALLIANCE DEFENDING ALLIANCE DEFENDING FREEDOM FREEDOM 1000 Hurricane Shoals Rd. 440 First Street, N.W. N.E., Suite D-1100 Suite 600 Lawrenceville, GA 30043 Washington, D.C. 20001 (770) 339–0774 (202) 393-8690 [email protected] Counsel for Petitioners i QUESTION PRESENTED Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, com- pleted violation of a plaintiff’s constitutional right. ii PARTIES TO THE PROCEEDING & CORPORATE DISCLOSURE Petitioners are Chike Uzuegbunam* and Joseph Bradford. Both were students at Georgia Gwinnett College when this case began. Both are individual persons. Respondents are Stanley C. Preczewski, Lois C. Richardson, Jim B. Fatzinger, Tomas Jiminez, Aileen C. Dowell, Gene Ruffin, Catherine Jannick Downey, Terrance Schneider, Corey Hughes, Rebecca A. Lawler, and Shenna Perry. All are or were officials at Georgia Gwinnett College involved in enforcing the challenged policies, and Chike and Joseph sued them in their official and individual capacities. During this lawsuit, Respondent Preczewski left the employ of Georgia Gwinnett College, and Respondent Jann L. Joseph took his place as president. Under FED. R. CIV. P. 25(d), Respondent Joseph is automatically substi- tuted for the official capacity claims against Respond- ent Preczweski. The individual capacity claims against Respondent Preczewski remain. LIST OF ALL PROCEEDINGS U.S. Court of Appeals for the Eleventh Circuit, No. 18-12676, Uzuegbunam v. Preczewski, petition for initial hearing en banc denied February 21, 2019, judgment entered July 1, 2019, en banc review denied September 4, 2019, mandate issued September 12, 2019. U.S. District Court for the Northern District of Georgia, No. 1:16-cv-04658-ELR, Uzuegbunam v. Preczewski, final judgment entered May 25, 2018. * Pronounced CHEE’-kay Oo-zah-BUN’-um. iii TABLE OF CONTENTS QUESTION PRESENTED ......................................... i PARTIES TO THE PROCEEDING & CORPORATE DISCLOSURE .............................. ii LIST OF ALL PROCEEDINGS ................................. ii TABLE OF AUTHORITIES ..................................... vi INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 3 I. Censorship through speech policies ................ 3 A. Chike and Joseph desire to share their faith. ............................................................ 3 B. Georgia Gwinnett College’s Speech Zones and Speech Code severely restrict expression. .................................................. 3 C. Respondents censor Chike. ......................... 6 D. Respondents censor Chike again. .............. 7 II. Lower court proceedings ............................... 10 SUMMARY OF THE ARGUMENT ......................... 14 iv ARGUMENT ............................................................ 16 I. Chike’s and Joseph’s nominal-damages claims are justiciable. .................................... 16 A. Nominal damages provide a remedy for injuries that do not cause quantifiable or compensable harm. .............................. 16 B. A prospective change in policy or conduct cannot moot a damages claim, including one for nominal damages. ....... 21 1. A case is moot only when it is impossible to grant any effectual relief. ................................................... 21 2. Nominal damages offer effectual relief for past constitutional injuries. ............................................... 22 3. A change in policy or conduct does not erase a completed constitutional injury. .................................................. 24 4. Because nominal-damages awards remedy past injuries, they are always retrospective and serve a distinct purpose from declaratory judgments. ........................................... 26 C. Chike’s and Joseph’s nominal-damages claims remain a “live” controversy because they seek vindication for past constitutional injuries. ............................. 32 v II. The overwhelming majority of circuit courts uphold the justiciability of nominal- damages claims for good reason. .................. 34 A. The majority rule is doctrinally consistent with Article III justiciability. ............................................. 34 B. The majority rule upholds § 1983’s purpose and better protects constitutional rights. ................................ 36 C. The majority rule recognizes that nominal damages are crucial to redress one-time violations in many contexts. ..... 39 III. The Eleventh Circuit’s rule misunderstands the nature and purpose of nominal- damages awards............................................. 40 A. Nominal-damages claims do not need to be paired with compensatory-damages claims to be justiciable. ............................ 41 B. The constitutional-avoidance doctrine does not justify a refusal to remedy completed constitutional violations. ........ 43 C. Nominal-damages awards do not destroy the mootness doctrine. ................ 45 D. The rule that nominal-damages claims are justiciable has not opened the floodgates to attorney-fee awards. ............ 48 CONCLUSION ......................................................... 51 vi TABLE OF AUTHORITIES Cases Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006) ......................... 14, 34 Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir. 2000) ................................ 19 Amato v. Saratoga Springs, 170 F.3d 311 (2d Cir. 1999) ......................... passim American Humanist Association v. Greenville County School District, 652 F. App’x 224 (4th Cir. 2016) ........................ 28 Archie v. Christian, 812 F.2d 250 (5th Cir. 1987) ............................... 19 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ......................................... 45, 46 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) ............................................. 43 Association of Community Organizations for Reform Now v. Dickerson, No. AMD 07-92, 2008 WL 4056183 (D. Md. Aug. 28, 2008) ..................................................... 37 Babbitt v. Farm Workers, 442 U.S. 289 (1979) ............................................. 47 Barcik v. Kubiaczyk, 895 P.2d 765 (Or. 1995) ...................................... 14 vii Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................. 47 Benton v. Oregon Student Assistance Commission, 421 F.3d 901 (9th Cir. 2005) ............................... 49 Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002) ......................... 14, 34 Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) ............................. 20 Boston’s Children First v. City of Boston, 395 F.3d 10 (1st Cir. 2005) ................................. 49 Brandau v. Kansas, 168 F.3d 1179 (10th Cir. 1999) ........................... 49 Brillhart v. Excess Insurance Company of America, 316 U.S. 491 (1942) ............................................. 30 Brinsdon v. McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017) ............................... 24 Brown v. Board of Education, 347 U.S. 483 (1954) ............................................. 41 Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) .................................. 22, 48-49 Burns v. Pennsylvania Department of Correction, 544 F.3d 279 (3d Cir. 2008) ................................ 28 viii Caban-Wheeler v. Elsea, 71 F.3d 837 (11th Cir. 1996) ............................... 31 Calder v. Jones, 465 U.S. 783 (1984) ............................................. 39 Camreta v. Greene, 563 U.S. 692 (2011) ............................................. 44 Cardinal Chemical Company v. Morton International, Inc., 508 U.S. 83 (1993) ............................................... 30 Carey v. Piphus, 435 U.S. 247 (1978) ...................................... passim Carter v. City of Las Cruces, 915 P.2d 336 (N.M. Ct. App. 1996)..................... 14 Carter v. Williams, 897 F.2d 1168 (D.C. 1990) .................................. 19 Cartwright v. Stamper, 7 F.3d 106 (7th Cir. 1993) ................................... 49 Central Radio Company v. Norfolk, 811 F.3d 625 (4th Cir. 2016) ................... 14, 24, 34 Chafin v. Chafin, 568 U.S. 165 (2013) ....................................... 21, 45 Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ............................................. 27 Church of Scientology of California v. United States, 506 U.S. 9 (1992) ................................................. 23 ix City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ......................................... 16, 24 City of Riverside v. Rivera, 477 U.S. 561 (1986) ....................................... 18, 36 CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612 (3d Cir. 2013) ................................ 47
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