On March 8, the United States Supreme Court issued its opinion in Uzuegbunam v. Preczewski, holding that a claim for nominal damages saves a claim from dismissal on mootness grounds. For more background on the case, see the prior overview here. Justice Thomas, writing for the majority, was joined by every member of the Court except Chief Justice Roberts. The difference between Justice Thomas’s majority opinion and the dissent by Chief Justice Roberts hinges on their differing reading of 19th century precedent from both the UK and the United States about the nature of nominal damages awards. The case was decided just eight weeks after oral argument, indicating that the issue was not too difficult for the Court.

This decision follows the rule already in place in several of the circuit courts of appeals and now clarifies this point of law nationwide. Expect savvy plaintiffs’ lawyers to include a claim for nominal damages in all lawsuits challenging rules or policies on constitutional or civil rights bases.

A concurrence by Justice Kavanaugh highlights one issue not addressed by the majority opinion (likely because it is not raised by the facts of the case), but discussed by Chief Justice Roberts in dissent. Specifically, may a defendant who is faced with only a claim for nominal damages moot the plaintiff’s claim by accepting and paying a judgment of nominal damages before a court issues a ruling determining the underlying question on the merits? Chief Justice Roberts notes that the Court expressly left this question open in Campbell-Ewald Co. v. Gomez, 577 U. S. 153, 166 (2016), but he (and the Solicitor General in this case) believes that the answer to that question is yes. Justice Kavanaugh’s concurring opinion states that he agrees with that conclusion. Chief Justice Roberts further suggests that a defendant facing a claim only for nominal damages “can even file an offer of judgment for one dollar, rendering the plaintiff liable for any subsequent costs if he receives only nominal damages” under Federal Rule of Civil Procedure 68(d). This issue may be the subject of further litigation, especially where defendants change policies challenged by plaintiffs shortly after a complaint is filed.

As a practical matter, the decision will allow the plaintiff, Chike Uzuegbunam, to continue with his claims against Georgia Gwinnett College (GGC) challenging GGC’s “Freedom of Expression Policy” which limited expressive activity to certain areas of campus and required speakers to obtain a permit. Uzuegbunam, who has since graduated from GGC, alleges his First Amendment rights were violated by GGC’s application of the policy to prevent him from handing out literature and speaking to students about his Christian faith. Since the litigation started, GGC revised its “Freedom of Expression Policy” to allow students to speak anywhere on campus without having to obtain a permit.

If you have any questions about this case, please contact the author. For additional insights on the Supreme Court decision, listen to the Bloomberg Law Podcast, “Chief Justice’s First Solo High Court Dissent,” featuring Audrey Anderson speaking about the case.