Freedom From Religion Foundati v. New Kensington Arnold School D , 832 F.3d 469 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3083
______________
FREEDOM FROM RELIGION FOUNDATION INC;
DOE 1, by Doe 1's next friend and parent, Marie Schaub;
MARIE SCHAUB, who also sues on her own behalf
v.
NEW KENSINGTON ARNOLD SCHOOL DISTRICT
Freedom From Religion Foundation, Inc.; Marie Schaub,
Appellants
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:12-cv-01319)
District Judge: Hon. Terrence F. McVerry
______________
Argued: May 19, 2016
______________
Before: SMITH, HARDIMAN, and SHWARTZ, Circuit
Judges
(Opinion Filed: August 9, 2016)
Patrick C. Elliott
Freedom from Religion Foundation
10 North Henry Street
Madison, WI 53703
Marcus B. Schneider [ARGUED]
Steele Schneider
428 Forbes Avenue, Suite 700
Pittsburgh, Pennsylvania 15219
Counsel for Appellants
Christine Lane
Anthony G. Sanchez [ARGUED]
Sanchez Legal Group, LLC
2403 Sidney Street, Suite 242
River Park Commons
Pittsburgh, Pennsylvania 15219
Counsel for Appellee
Richard B. Katskee
Alexander J. Luchenitser
Americans United for Separation of Church & State
1901 L Street, N.W.
Suite 400
Washington, DC 20005
Stephen M. Shapiro
Charles M. Woodworth [ARGUED]
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
2
Brian D. Netter
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
Steven M. Freeman
David L. Barkey
Anti-Defamation League
605 Third Avenue
New York, NY 10158
Jeffrey I. Pasek
Cozen O’Connor
1650 Market Street
Philadelphia, PA 19103
Harsimran Kaur
Gurjot Kaur
The Sikh Coalition
50 Broad Street, Suite 1537
New York, NY 10004
Counsel for Amicus Curiae
______________
OPINION
______________
SHWARTZ, Circuit Judge.
Marie Schaub, her daughter Doe 1, and the Freedom
From Religion Foundation (“FFRF”) (collectively,
“Appellants”) brought suit under 42 U.S.C. § 1983, alleging
3
that the New Kensington-Arnold School District (“the
District”) violates the Establishment Clause by maintaining a
monument of the Ten Commandments at its public high
school. The District Court granted the District’s summary
judgment motion, concluding that the Appellants lack
standing and their request for injunctive relief is moot.
Because Schaub has standing to seek both nominal damages
and injunctive relief, and her request for injunctive relief is
not moot, we will reverse the District Court’s order
dismissing her claims. We will vacate the order dismissing
FFRF’s claims to allow the District Court to consider whether
Schaub was a member of FFRF at the time the complaint was
filed. As to Doe 1, we need not address whether she has
standing to obtain an injunction, but conclude that the District
Court correctly found that she lacks standing to seek nominal
damages, and we will affirm the order granting the District
summary judgment with respect to this claim.
I
In 1956, the New Kensington Fraternal Order of the
Eagles, a non-profit charitable organization, donated a six-
foot granite monument inscribed with the Ten
Commandments to be placed on the grounds of Valley High
School in New Kensington. The donation was part of a
nationwide program spearheaded by the Eagles’ Youth
Guidance Committee through which local chapters of the
organization donated over 140 such monuments. The
Committee believed that troubled young people would benefit
from exposure to the Ten Commandments as a code of
conduct. In addition to the text of the Ten Commandments,
the tablet is adorned with images of an eagle, an American
flag, the Star of David, the Chi-Rho symbol, a Masonic eye,
4
and tablets with Hebrew and Phoenician lettering.
The monument is located near the entrance to the high
school’s gymnasium, which is accessible from the student
parking area via two railed footpaths. Anyone entering the
school via these paths passes within 15 feet of the monument.
The parties disagree about how closely one must approach the
monument in order to read its text.
On March 20, 2012, FFRF, an organization dedicated
to promoting separation of church and state, wrote a letter to
the Superintendent of the District requesting that the
monument be removed. The school board rejected the
request. Local media reported on the letter and the school
board’s decision. Schaub saw one such story on television,
and contacted FFRF through its website. She states that she
has “been a member of FFRF since August 2012, when [she]
contacted FFRF regarding this lawsuit.” App. 734.1
Schaub and Doe 1 live within the New Kensington-
Arnold School District. Schaub had visited the high school
1
Schaub was questioned about how she became a
member of FFRF during her April 2014 deposition, and was
asked “how long are you a member for?” to which she
answered, “[t]his year.” App. 834. The questioner then said
“[i]s that all?” and Schaub responded “[y]es, I believe my
membership expires in 2015.” App. 834. The District used
this exchange to conclude that Schaub was not a member at
the time the lawsuit was filed in 2012. The only evidence to
support the claim that Schaub was a member when the suit
was filed is her December 2014 declaration, which stated that
she has “been a member of FFRF since August 2012.” App.
734.
5
and come into contact with the monument in the past while
taking Doe 1 to a karate event, picking Doe 1 up from a
program at the high school swimming pool, and dropping off
her sister, whose child attends the high school, to attend
events at the school once or twice. In addition, Doe 1 was
scheduled to attend the high school beginning in August
2014, and Schaub planned to drive her to school.
Schaub estimates that from the curb, where she would
pull over to drop someone off at the gym’s entrance, she
could see the monument and make out the title, “The Ten
Commandments” as well as the word “Lord,” which are
printed in a larger font than the remaining text. App. 820-22.
The monument can also be seen from the road on which
Schaub and Doe 1 frequently travel.
Schaub did not testify that she ever read the full text of
the monument, but said that she walked by it and views it as
“commanding” students and visitors at the high school to
worship “thy God,” brands her as “an outsider because [she]
do[es] not follow the particular religion or god that the
monument endorses,” App. 679, and makes her “stomach
turn[ ],” App. 824. She wishes to bring up her daughter
without religion and “do[es] not want Doe 1 to be influenced
by the Ten Commandments monument in front of Valley
High School.” App. 680.
Doe 1, who identifies as non-religious, recalls walking
past the monument to attend the karate event when she was
six or seven years old, and to use the high school swimming
pool between third and fifth grade, but “never read it,” App.
684, “was young so [she] didn’t really know what it meant,”
App. 687, and “didn’t really pay attention to it.” App. 684.
6
She subsequently “looked at it because [her] mom was [ ]
worried about it” and “wanted to see what it was about.”
App. 684. Specifically, Doe 1 testified that she reviewed a
picture of the monument, and has seen it from the road while
being driven to a friend’s house. When asked at her
deposition about her reaction to the monument, Doe 1
testified that she “didn’t really feel anything when [she] was
young,” and right now, does not “feel like [she] ha[s] to
believe in god, but . . . [that] since it’s there in front of a
school that they kind of want you to be that way.”2 App. 864.
Appellants concede the record is silent as to whether Doe 1
had this view at the time the complaint was filed.
On September 14, 2012, Appellants filed a complaint
in the United States District Court for the Western District of
Pennsylvania alleging that the presence of the monument on
public school property violates the Establishment Clause and
seeking declaratory and injunctive relief, nominal damages,
and attorneys’ fees.3 During the pendency of the lawsuit,
Schaub and Doe 1’s contact and possible contact with the
monument continued. Doe 1 attended the eighth grade dinner
dance at the high school in May 2014, and she expressed an
interest in attending classes at the Northern Westmoreland
2
While the complaint alleges Doe 1 has “felt anxiety
over the proposition that the religious monument will” remain
at the school, Compl. at 6-7, ECF No. 1, the record shows that
Doe 1 did not state any negative feelings about the
monument.
3
Nominal damages are a type of damages awarded for
the violation of a right “without proof of actual injury.”
Carey v. Piphus, 435 U.S. 247, 266 (1978).
7
Career & Technology Center, which is located on the high
school campus.
In August 2014, Schaub sent Doe 1 to a different high
school, which required her to leave her middle school
classmates and attend a school farther from Schaub’s home.
Schaub avows that were the monument removed from Valley
High School, she would permit Doe 1 to enroll there.
After discovery, the parties filed cross-motions for
summary judgment. The District Court held that Appellants
lack standing and, in any event, their claim for injunctive
relief was moot. The District Court observed that appellate
courts require plaintiffs bringing Establishment Clause claims
to show “direct, unwelcome contact” with the allegedly
offensive display, but noted that the cases tended to concern
plaintiffs whose contact with a display was “frequent and
regular,” and a necessary result of accessing government
services or fulfilling civic obligations. App. 14 (quoting
Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1252 (9th Cir.
2007)). As a result, it interpreted these factors as imposing
additional elements to show standing, and held that Doe 1 and
Schaub “failed to establish that they were forced to come into
direct, regular, and unwelcome contact with the Ten
Commandments monument.” App. 15 (internal quotation
marks omitted). As to Schaub, the District Court found that
she had come into contact with the monument just a few
times and such exposure was insufficient to confer standing.
The District Court also found that she had not shown that her
contact was “required” for “necessary matters” or as “part of
her regular routine.” App. 16. Furthermore, the District
Court read Schaub’s deposition testimony that “it never
occur[ed] to [her]” that the monument was wrongful and she
8
“didn’t really think too much about it” when she first saw it to
mean that her objections to the monument arose only after
FFRF became involved in the controversy, undermining the
personal nature of her claims. App. 16.
As to FFRF, the District Court noted that its
associational standing was contingent on Schaub’s standing
and, because she lacked standing, FFRF also lacked standing.
As to Doe 1, the District Court found her claim was more
“tenuous” than her mother’s because she did not seem to
recollect seeing the monument in person or feeling affronted
by it. App. 16-17.
The District Court also found that Doe 1’s attendance
at a different high school was irrelevant to standing because
standing must exist at the time a complaint was filed, and her
attendance at a different school occurred at a later time. The
District Court viewed her enrollment at a different school,
however, as mooting the request for injunctive relief because
the decision to enroll Doe 1 at another school removed any
threat of future injury from alleged exposure to the
monument. Schaub, Doe 1, and FFRF appeal.
II4
4
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise de novo review over legal conclusions
concerning standing and mootness. Perelman v. Perelman,
793 F.3d 368, 373 (3d Cir. 2015) (standing); Ruocchio v.
United Transp. Union, Local 60, 181 F.3d 376, 382 (3d Cir.
1999) (mootness).
9
A
Standing and mootness are two distinct justiciability
doctrines that limit our jurisdiction to cases and controversies
in which a plaintiff has a concrete stake. Standing ensures
that each plaintiff has “[t]he requisite personal interest . . . at
the commencement of the litigation,” while mootness ensures
that this interest “continue[s] throughout” the duration of the
case. Arizonans for Official English v. Arizona, 520 U.S. 43,
68 n.22 (1997) (internal quotation marks omitted).
To establish constitutional standing, “a plaintiff must
The District Court, rather than a jury, resolves factual
issues relevant to determining whether a party has standing.
See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438
U.S. 59, 72 (1978) (relying on the district court’s factual
findings from its evidentiary hearing concerning standing
issues); N.J. Coal. of Rooming & Boarding House Owners v.
Mayor & Council of Asbury Park, 152 F.3d 217, 220 (3d Cir.
1998) (remanding to the district court for “further factual
development and a new determination by the district court
regarding plaintiffs’ standing” because of “insufficient factual
findings for us to review its standing determination.”). We
review those findings for clear error. Perelman, 793 F.3d at
373.
A plaintiff bears the burden of showing standing in the
“manner and degree of evidence required at the [particular]
stage[ ] of the litigation.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). Thus, “[a]t the summary judgment
stage, the plaintiff must produce evidence [of standing] in the
form of Fed. R. Civ. P. 56[ ] affidavits or documents . . . .”
ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 261 (3d Cir. 2001)
(quotations and citations omitted).
10
show (1) it has suffered an ‘injury in fact’ that is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000). The plaintiff has the burden of demonstrating that
these requirements are met at the “commencement of the
litigation,” and must do so “separately for each form of relief
sought.” Id. at 170, 184-85. In assessing standing, our
primary project is to separate those with a true stake in the
controversy from those asserting “the generalized interest of
all citizens in constitutional governance.” Valley Forge
Christian Coll. v. Ams. United For Separation of Church &
State, Inc., 454 U.S. 464, 483 (1982) (quoting Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13
(1979)).
Mootness “ensures that the litigant’s interest in the
outcome continues to exist throughout the life of the lawsuit.”
Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). The
party asserting that a claim is moot must show that it is
“absolutely clear that the allegedly wrongful behavior [is] not
reasonably [ ] expected to recur.” Laidlaw, 528 U.S. at 189.
“[A] court will not dismiss a case as moot,” even if the nature
of the injury changes during the lawsuit, if “secondary or
‘collateral’ injuries survive after resolution of the primary
injury.” Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 384 (3d
Cir. 2001); Cantrell v. City of Long Beach, 241 F.3d 674, 678
(9th Cir. 2001) (“[T]he question is not whether the precise
relief sought at the time the application for an injunction was
filed is still available. The question is whether there can be
11
any effective relief.”).
We first address what a plaintiff must show to have
standing to challenge a religious display under the
Establishment Clause and then examine whether standing
exists to pursue the remedies sought and whether the
Appellants’ conduct moots the claim for relief.
B
Nearly every court of appeals has held that standing in
this context “requires only direct and unwelcome personal
contact with the alleged establishment of religion.”5 Red
River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th
Cir. 2012); see also Cooper v. U.S. Postal Serv., 577 F.3d
479, 491 (2d Cir. 2009) (plaintiff who had “direct contact
with religious displays that were made a part of his
experience using the postal facility nearest his home” had
standing); Vasquez, 487 F.3d at 1253 (“[S]piritual harm
resulting from unwelcome direct contact with an allegedly
offensive religious . . . symbol . . . suffices to confer Article
5
Our Court has issued rulings in cases concerning
religious displays that are consistent with the view that direct,
unwelcome contact suffices to confer standing. See
Modrovich v. Allegheny Cty., 385 F.3d 397, 399 (3d Cir.
2004) (not mentioning issue of standing, but noting in passing
that plaintiffs had alleged “regular, direct and unwelcome”
contact with religious display); Freethought Soc’y of Greater
Phila. v. Chester Cty., 334 F.3d 247, 255 n.3 (3d Cir. 2003)
(dismissing in a footnote the argument that plaintiffs who
viewed religious plaque at courthouse occasionally while
conducting official business there lacked standing as “not . . .
convincing”).
12
III standing.”); Am. Civil Liberties Union of Ohio Found.,
Inc. v. Ashbrook, 375 F.3d 484, 490 (6th Cir. 2004) (plaintiff
had standing to challenge display in courtroom because he
had “direct, unwelcome contact with the Ten Commandments
display”); Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th
Cir. 1997) (“[D]irect contact with an unwelcome religious
exercise or display works a personal injury distinct from and
in addition to each citizen’s general grievance against
unconstitutional government conduct.”); Foremaster v. City
of St. George, 882 F.2d 1485, 1490 (10th Cir. 1989)
(“allegations of direct, personal contact” with religious icon
in city logo gave rise to standing); Saladin v. City of
Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (standing in
Establishment Clause cases is established by “direct contact
with the offensive conduct”).
The District Court appeared to read the direct,
unwelcome contact standard to include a frequency
requirement. This is incorrect. First, the Supreme Court has
made clear that “an identifiable trifle is enough for standing
to fight out a question of principle.” United States v. Students
Challenging Regulatory Agency Procedures (SCRAP), 412
U.S. 669, 689 n.14 (1973); see also Saladin, 812 F.2d at 691
(citing SCRAP and concluding that “[t]here is no minimum
quantitative limit required to show injury”); Am. Civil
Liberties Union of Ga. v. Rabun Cty. Chamber of Commerce,
Inc., 698 F.2d 1098, 1108 (11th Cir. 1983) (concluding that
“the Supreme Court has made it clear that no minimum
quantitative limit is required to establish injury under either a
constitutional or prudential analysis”). Requiring frequent
contact with the display to obtain standing is inconsistent with
the concept that a single “trifle” is sufficient to establish
standing.
13
Second, while many courts have noted the frequency
of a plaintiff’s actual or expected contact with a religious
display, the same courts do not include frequency as a
necessary element when stating the applicable rule. See, e.g.,
Jewish People for the Betterment of Westhampton Beach v.
Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir.
2015) (holding that residents had standing to challenge the
erection of a Jewish ritual enclosure of a geographic area
which they would “confront[ ] . . . on a daily basis,” but
stating that standing is found in the religious display context
when a plaintiff alleges that he “was made uncomfortable by
direct contact with religious displays” (quoting Cooper, 577
F.3d at 491)); Am. Civil Liberties Union of Ohio Found., Inc.
v. DeWeese, 633 F.3d 424, 429 (6th Cir. 2011) (noting that
plaintiff had “frequently and routinely” come into contact
with the offensive display, but saying that “‘direct and
unwelcome’ contact with the contested object demonstrates
psychological injury in fact sufficient to confer standing”);
Vasquez, 487 F.3d at 1252-53 (noting that plaintiff’s contact
with display “was frequent and regular, not sporadic and
remote,” but describing majority test among the courts of
appeals as “unwelcome direct contact with” a religious
display); Suhre, 131 F.3d at 1088, 1090 (holding that plaintiff
who came into contact with Ten Commandments display in
courtroom during “numerous suits” he was involved with and
attended public meetings there had standing, but referring to
“direct unwelcome contact with a religious display” as the
required standard). For instance, in Pelphrey v. Cobb County,
547 F.3d 1263, 1279-80 (11th Cir. 2008), the court noted that
a plaintiff challenging a religious invocation at planning
commission meetings had attended three meetings in person
and viewed many on the internet, but concluded that standing
14
existed because “the record allow[ed] an inference that [the
plaintiff] observed a meeting,” not because he did so
frequently or regularly. Id. at 1280.
In other cases, courts do not describe contact with a
display as particularly frequent, or omit frequency from the
discussion completely. See, e.g., Red River, 679 F.3d at
1023-24 (not discussing frequency with which plaintiffs came
into contact with display); Am. Atheists, Inc. v. Davenport,
637 F.3d 1095, 1113 (10th Cir. 2010) (same); Books v.
Elkhart Cty., 401 F.3d 857, 862 (7th Cir. 2005) (plaintiff
would need to pass display “at least once a year in order to
pick up a form” as well as if he visited two County
departments); Doe v. Cty. of Montgomery, 41 F.3d 1156,
1158 (7th Cir. 1994) (plaintiff came into contact with
religious display on a few occasions when registering to vote,
obtaining absentee ballots, and performing jury duty). While
frequent contact with a religious display may strengthen the
case for standing, it is not required to establish standing. But
see Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 793
(10th Cir. 2009) (reciting test that “[a]llegations of personal
contact with a state-sponsored image suffice to demonstrate . .
. direct injury” but proceeding to compare the frequency of
contact with that in other cases (internal quotation marks
omitted)).6
While frequent contact with a display is not a
requirement for standing, a passerby who is not a member of
6
Imposing a frequency requirement would also be
tantamount to endorsing the notion that a plaintiff must cause
himself increased injury to bring a claim.
15
the community, and who faces no risk of future contact,7 may
not have an injury in fact sufficient to confer standing. This
is because standing requires that the plaintiff has a concrete
grievance that is particularized to him and that the plaintiff is
not one simply expressing generalized disagreement with
activities in a place in which he has no connection. See
Valley Forge, 454 U.S. at 482-83; see also Moss v.
Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th
Cir. 2012); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d
679, 683 (6th Cir. 1994) (practices in one’s “own community
may create a larger psychological wound than someplace we
are just passing through”); Saladin, 812 F.2d at 693 (plaintiffs
“have more than an abstract interest” where they are “part of
[the relevant community] and are directly affronted” by a
religious display).
Moreover, an individual objecting to a religious
display on government property or religious activity that is
government-sponsored need not change her behavior to avoid
contact with the display to establish standing. Suhre, 131
F.3d at 1088 (“In evaluating standing, the Supreme Court has
never required that Establishment Clause plaintiffs take
affirmative steps to avoid contact with challenged displays or
religious exercises.”). Rather, standing exists either when
plaintiffs “were subjected to unwelcome religious
exercises or were forced to assume special burdens to avoid
them.” Valley Forge, 454 U.S. at 486 n.22. Consistent with
7
The risk of future contact is only relevant to the
question of whether there is standing to seek injunctive and
declaratory relief, and it does not factor into our analysis of
whether there is standing to pursue nominal damages. See
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
16
this approach, the Supreme Court has decided religious
display cases in which plaintiffs had come into contact with
the displays but not altered their conduct, without noting any
concern about their standing to sue. See Cty. of Allegheny v.
Am. Civil Liberties Union Greater Pittsburgh Chapter, 492
U.S. 573 (1989) (challenging a holiday display outside county
courthouse); Lynch v. Donnelly, 465 U.S. 668 (1984)
(challenging a holiday display in a city’s shopping district).
We agree with the view that one should not be
required to avoid an unwelcome object or activity to have
standing to bring an Establishment Clause claim.8 See, e.g.,
Red River, 679 F.3d at 1023; Books, 401 F.3d at 857, 861;
Foremaster, 882 F.2d at 1490; Suhre, 131 F.3d at 1088. In
the religious display context, the allegedly unwelcome
activity generally takes place on government property or at a
government-sponsored event. A community member should
not be forced to forgo a government service to preserve his or
her ability to challenge an allegedly unconstitutional religious
display or activity.9 While altering one’s behavior to avoid
8
As the School District points out, the Court of
Appeals for the Seventh Circuit suggested in Freedom From
Religion Found., Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988)
and Am. Civil Liberties Union of Ill. v. City of St. Charles,
794 F.2d 265, 268-69 (7th Cir. 1986) that altered conduct was
required to bring an establishment clause claim. More recent
Seventh Circuit cases, however, have retreated from this
view, see Books, 401 F.3d at 857, 861 (noting that other
Seventh Circuit cases have found standing without altered
conduct).
9
Similarly, while many cases involve plaintiffs
availing themselves of needed government services or
17
something may demonstrate that the thing avoided is
unwelcome, altered conduct is not a prerequisite for obtaining
standing in this context.10
Thus, a community member like Schaub may establish
standing by showing direct, unwelcome contact with the
allegedly offending object or event, regardless of whether
such contact is infrequent or she does not alter her behavior to
avoid it.11
fulfilling civic obligations, see, e.g., Cooper, 577 F.3d at 490;
Books, 401 F.3d at 861; Doe, 41 F.3d at 1161, there is no
requirement that a plaintiff do so, or that her contact with the
display be unavoidable. Furthermore, attending events at a
public school, whether or not one is a student, is plainly an
interest that can give rise to the requisite injury for standing
purposes. See Washegesic, 33 F.3d at 682 (religious painting
hung at a public school did “not affect students only” but
rather, “a member of the public would have standing if she
attended events in the gymnasium”); Jager v. Douglas Cty.
Sch. Dist., 862 F.2d 824, 826 n.1 (11th Cir. 1989) (former
student and his father had standing to challenge prayer at
football games “as people who attend the football games”).
10
See, e.g., Moss, 683 F.3d at 606-07 (discussing
plaintiffs’ change of conduct as one of several reasons they
demonstrated sufficient injury); Cooper, 577 F.3d at 490(noting that that “the discomfort [the plaintiff] suffered when
he viewed the religious displays . . . was so great that he was
inclined to drive to another postal unit” as one reason that his
injury was of sufficient seriousness).
11
A parent sending his or her child to a public school
in the community also has standing to complain about present
and future religious displays or activities at the child’s school.
18
C
A plaintiff seeking relief must show he or she has
standing for each remedy sought. Laidlaw, 528 U.S. at 184.
Thus, we first examine Schaub and Doe 1’s standing to secure
nominal damages for injury from past direct, unwelcome
contact with the monument. Schaub has cited three specific
occasions on which she viewed, and hence had direct contact
with, the monument. Whether Schaub read the monument
Lee v. Weisman, 505 U.S. 577, 584 (1992) (the father of a
high school freshman had Article III standing to challenge the
inclusion of a prayer during his daughter’s anticipated high
school graduation ceremony years later); Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9 (1963)
(both children and their parents had standing to challenge
bible reading in their public school); see also Valley Forge,
454 U.S. at 486 n.22 (characterizing Schempp as supporting
standing “because impressionable schoolchildren were
subjected to unwelcome religious exercises or were forced to
assume special burdens to avoid them”); Donovan ex rel.
Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 217
n.2 (3d Cir. 2003) (“We do note that parents independently
have standing to bring constitutional challenges to the
conditions in their children’s schools.”); Brody ex rel.
Sugzdinis v. Spang, 957 F.2d 1108, 1114 (3d Cir. 1992)
(“parents independently have standing to bring constitutional
challenges to the conditions in their children’s schools”); Bell
v. Little Axe Indep. Sch. Dist. No. 70 of Cleveland Cty., 766
F.2d 1391, 1398 (10th Cir. 1985) (agreeing with district court
that parents may “on their own behalf, assert that the state is
unconstitutionally acting to establish a religious preference
affecting their children” (internal quotation marks omitted)).
19
each time she saw it, or ever fully read its text, is immaterial
since it is the monument’s overall representation of the Ten
Commandments to which Schaub objects, as she sees it as
conveying a religious message. See Saladin, 812 F.2d at 691-
92 (holding that rendering the term “Christianity” as part of a
city seal, to be illegible did not prevent residents who knew
what it signified from being reminded of it “every time they
[were] confronted with” it). Schaub’s allegations that the
monument “signals that [she is] an outsider because [she]
do[es] not follow the particular religion or god that the
monument endorses,” App. 679, and that her “stomach
turned” when she encountered it,12 App. 824, are sufficient to
demonstrate that her contact with the monument was
unwelcome. Thus, Schaub has standing to pursue a nominal
damages claim.
Doe 1, on the other hand, explicitly stated that she did
not understand the monument when she encountered it prior
to the lawsuit because she was too young, “never read it or
paid attention to it,” and never told anyone that it bothered
her. App. 684. In fact, it is not clear from the record that Doe
1 read or understood the monument until after the suit was
filed. See Wall, 246 F.3d at 266 (concluding that plaintiffs
lacked standing because they failed to describe their reaction
to a religious display and because it was “unclear whether”
one plaintiff observed it “in order to describe [it] for this
litigation” or while going about ordinary business). As to
12
“[W]hile those injuries are largely emotional, we
must presume they are sincerely felt.” Red River, 679 F.3d at
1024 (noting that there is no basis under Article III’s case-or-
controversy requirement for treating intangible emotional
harms differently from more readily quantifiable harms).
20
Doe 1’s comment that she later viewed the monument as
conveying that the school wanted students to subscribe to
religious beliefs, the record does not show that she had that
view at the time the complaint was filed. Thus, we cannot
say the District Court erred in concluding that Doe 1 lacks
standing.
D
We next examine whether Schaub and Doe 1 have
standing to pursue prospective injunctive relief. At the time
the complaint was filed, Schaub believed that Doe 1 would
matriculate at the high school and come into daily contact
with the monument. While the record does not establish that
Doe 1 herself dreaded contact with the monument, she
asserted that her mother, Schaub, planned to drive her to
school, and thus would have contact with the monument.
Moreover, as Doe 1’s parent, she has an interest in guiding
her child’s religious upbringing and has standing to challenge
actions that seek to “establish a religious preference
affecting” her child. Bell v. Little Axe Indep. Sch. Dist. No.
70 of Cleveland Cty., 766 F.2d 1391, 1398 (10th Cir. 1985)
(internal quotation marks and citation omitted). Thus, Schaub
has standing to seek injunctive relief.
Schaub’s decision not to send Doe 1 to the high school
does not deprive Schaub of standing to seek injunctive relief.
First, injunctive relief still has the capacity to redress her
grievances because Doe 1 could return to the high school if
the monument were removed.13 Schaub therefore has a
13
Schaub also alleges that Doe 1 has expressed an
interest in attending classes at the Northern Westmoreland
21
concrete interest in the resolution of her request for injunctive
relief. Second, the “principles of standing [do not] require [a]
plaintiff[ ] to remain in a hostile environment to enforce [her]
constitutional rights.” Id. at 1399 (no bar to injunctive relief
where parents who sought to end various religious practices at
a school chose to move their children to another school
during the pendency of the lawsuit). For these reasons,
Schaub has standing to pursue injunctive relief.14
The decision to remove Doe 1 from the high school
does not render Schaub’s claim for injunctive relief moot. As
previously stated, Schaub was not required to continue
suffering the exact injury described in the complaint to
maintain her entitlement to seek relief. See Chong, 264 F.3d
at 384; Cantrell, 241 F.3d at 678. While there may be cases
in which an injunction would be ineffective because the
injurious conduct has ceased, here Schaub represents that she
intends to enroll Doe 1 at the high school if the monument is
removed and that Doe 1 wishes to take courses at the
adjoining career center, demonstrating that an injunction, if
Career & Technology Center, which is located on the high
school campus, but that Schaub is concerned doing so would
bring Doe 1 in contact with the monument.
14
Since we have concluded Schaub has standing to
seek equitable relief, we need not address the standing of the
other plaintiffs to pursue injunctive relief. Bd. of Educ. of
Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 826 n.1
(2002) (explaining that because one party has standing, it is
unnecessary to address whether the other party also has
standing to challenge the school’s suspicionless drug testing
policy).
22
granted, could provide relief. Thus, the request for an
injunction is not moot.
E
Finally, we address FFRF’s standing. FFRF’s standing
is predicated wholly on the standing of its alleged member,
Schaub. Because we conclude Schaub has standing, we will
remand to the District Court to determine whether she was a
member of FFRF at the time the complaint was filed and if
FFRF thereby has organizational standing to pursue either
injunctive relief or nominal damages.
III
For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment with respect to Doe 1’s
claims for nominal damages, reverse and remand for further
proceedings concerning Schaub’s claims, and vacate and
remand for consideration of FFRF’s standing and further
proceedings concerning FFRF’s claims if the District Court
finds FFRF has standing.15
15
The standing inquiry is not an assessment of the
merits, see ASARCO Inc. v. Kadish, 490 U.S. 605, 624
(1989), and therefore nothing herein constitutes an opinion on
the merits.
23
Freedom From Religion Foundation, Inc. v. New Kensington
Arnold School District, No. 15-3083
SMITH, Circuit Judge, concurring dubitante.
I join in the excellent opinion authored by Judge
Shwartz. I write separately only because I am doubtful that a
claim for nominal damages alone suffices to create standing
to seek backward-looking relief. While this issue has little
practical importance to this case, it does have broad
consequences for our standing and mootness inquiries in
other scenarios. Furthermore, this appears to be the first time
our Court has ruled on this issue.
Because this is a case about standing, I begin my
discussion with the standing doctrine. Then, because the
doctrines of standing and mootness are closely related, and
because there are many more cases discussing the interplay
between nominal damages and mootness than there are
between that of nominal damages and standing, I next discuss
the mootness doctrine and the persuasiveness of these cases.
After revisiting the facts of our case, I consider a few
hypothetical scenarios that will be impacted by our standing
decision today. Finally, I conclude by emphasizing that
nothing in this opinion casts doubt on the availability of
nominal damages at the conclusion of a suit. I only write to
express skepticism that a claim for nominal damages alone
would suffice to create standing or save a case from
mootness.
I.
That “a plaintiff must demonstrate standing separately
for each form of relief sought” is an unremarkable
proposition. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). My uncertainty
stems from the third requirement of standing: redressability.
As the panel opinion points out, in order to satisfy Article III
standing, a plaintiff must show that “(1) it has suffered an
‘injury in fact’ that is (a) concrete and particularized and (b)
actual and imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. at 180-81. Outside of quoting this test, the
panel opinion discusses only whether there exists an adequate
injury in fact, as that is the only prong of the standing inquiry
that the parties themselves discuss. Yet of course, we have an
independent obligation to determine whether we have
jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 95 (1998).
In order for an injury to be redressable, a plaintiff must
show that she “personally would benefit in a tangible way
from the court’s intervention.” Warth v. Selden, 422 U.S.
490, 508 (1975). Steel Co. is the only Supreme Court
decision to focus on the redressability prong of standing. In
that case, the plaintiff alleged that it suffered an injury –
namely, that its members’ “safety, health, recreational,
economic, aesthetic and environmental interests” were
negatively impacted – due to the defendant’s failure to file
timely and required reports pursuant to federal statute. 523
U.S. at 105. Assuming that this was sufficient for an injury in
2
fact, the Supreme Court walked through each of the six forms
of relief sought by the plaintiff and determined that the
organization lacked standing because none of these forms of
relief redressed this injury. Id. at 105-09.
First, the plaintiff sought a declaratory judgment that
there was a violation of the federal statute, which was
“disposed of summarily” as there was no dispute that there
was, in fact, a violation of the statute.1 Id. at 106. Second,
the plaintiff stated that civil penalties, payable to the United
States Treasury, would redress the injury because the
payment would provide “vindication of the rule of law,” even
if it would not provide “reimbursement for the costs incurred
as a result of the late filing.” Id. The Court rejected this
argument because, “although a suiter may derive great
comfort and joy from the fact that the United States Treasury
is not cheated . . . psychic satisfaction is not an acceptable
Article III remedy because it does not redress a cognizable
Article III injury.” Id. at 107. Next, the Court concluded that
“investigation and prosecution costs,” which were authorized
by statute, could not create standing when it was otherwise
absent, because “a plaintiff cannot achieve standing to litigate
a substantive issue by bringing suit for the cost of bringing
suit.” Id. at 107. Finally, the Court concluded that the
1
While the Supreme Court had no need to delve further into
the declaratory relief sought, it stated in Los Angeles Cty.,
Cal. v. Humphries, 562 U.S. 29, 31 (2010), that a declaratory
judgment is a claim for prospective relief, different from a
claim alleging past harm.
3
remaining two forms of relief sought2 – giving the plaintiff
the authority to inspect the defendant’s records and facility
and requiring defendant to give the plaintiff copies of
compliance reports – were injunctive in nature. Id. at 108.
Such injunctive relief “cannot conceivably remedy any past
wrong but is aimed at deterring petitioner from violating [the
federal statute] in the future.” Id. Thus, if the complaint “had
alleged a continuing violation or the imminence of a future
violation, the injunctive relief requested would remedy that
alleged harm.” Id. However, such a “generalized interest in
deterrence” did nothing to remedy the past harm that had
occurred. Id.In holding that the redressability prong of standing was
not satisfied, the Court stated, “[r]elief that does not remedy
the injury suffered cannot bootstrap a plaintiff into federal
court; that is the very essence of the redressability
requirement.” Id. at 107. Thus, even though the plaintiffs
sought several forms of relief that might allow a suitor to
“derive great comfort and joy” or declare that there was, in
fact, a violation of the law, id., because none of the forms of
relief sought would serve to compensate plaintiffs for their
past losses, Article III standing was lacking. Id. at 109-10.
The question of whether nominal damages, standing
alone, serve to confer standing on a plaintiff has never been
addressed by this Court, and, with one exception, it does not
appear to have been addressed by our sister circuits.
However, the principle appears to be the same as that in Steel
2
The sixth form of relief sought was “any such further relief
as the court deems appropriate.” Id. at 105.
4
Co.: just as the “psychic satisfaction” from being told that you
were right or by seeing a wrongdoer pay monies to the
Treasury does not redress past harm, nominal damages do not
serve to redress past injury. “Nominal damages are damages
in name only, trivial sums such as six cents or $1.” Utah
Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248,
1264 (10th Cir. 2004) (McConnell, J., concurring) (quoting 1
Dan B. Dobbs, Dobbs Law of Remedies, § 3.3(2), at 294 (2d
ed. 1993)). If a plaintiff were seeking to be compensated for
past harms, he would seek compensatory damages.
There have been three appellate courts that have
explicitly addressed whether a claim for nominal damages
alone would suffice for standing purposes. First, the Second
Circuit, in Kerrigan v. Boucher, held that a “claim for
nominal damages, which is clearly incidental to the relief
sought, cannot properly be the basis upon which a court
should find a case or controversy where none in fact exists.”
450 F.2d 487, 489-90 (2d Cir. 1971). This holding was
reaffirmed two years later in the two-judge concurrence in
Hernandez v. European Auto Collision, Inc., 487 F.2d 378,
387 (2d Cir. 1973) (Timbers, J., concurring) (quoting
Kerrigan, 450 F.2d at 489-90). However, both of these cases
appear to have been largely overlooked, with neither having
been cited with great frequency.
Next, the Eighth Circuit, in what I consider to be a
fairly conclusory manner, held that a claim for nominal
damages meant that the redressability requirement was
satisfied. Advantage Media, L.L.C. v. City of Eden Prairie,
456 F.3d 793, 802 (8th Cir. 2006). The one case that it relied
on for support of this proposition, Tandy v. City of Wichita,
5
stated that standing was satisfied because “compensatory or
nominal damages can redress [the plaintiff’s] injury in fact.”
380 F.3d 1277, 1290 (10th Cir. 2004) (emphasis added).
While Tandy does suggest that nominal damages alone would
redress an injury in fact, the Tenth Circuit did not have to
address this issue due to the presence of a claim for
compensatory damages.3
In the only case where an appellate court has
thoroughly analyzed the relationship between nominal
damages and redressability, the Sixth Circuit in Morrison v.
Board of Education of Boyd County, stated that “[n]o readily
apparent theory emerges as to how nominal damages might
redress past [harm].”4 521 F.3d 602, 610 (6th Cir. 2008).
Thus, where the plaintiff sought “nominal damages based on
a regime no longer in existence,” the redressability prong of
standing was not satisfied because “[t]o confer nominal
3
The Fourth Circuit, in Covenant Media of SC, LLC v. City of
North Charleston, similarly suggested that a claim for nominal
damages would suffice for standing purposes. 493 F.3d 421, 428
(4th Cir. 2007) (noting that the claim is “redressable at least by
nominal damages”). However, like many of the cases that seem to
say that a case is saved from mootness at least by nominal
damages, the plaintiffs sought both compensatory and nominal
damages. See id. at 429 n.4.
4
As discussed further below, the Morrison court relied heavily
upon then-Judge McConnell’s views in Utah Animal Rights
Coalition, which addressed the related question of whether a claim
for nominal damages prevents a case from becoming moot.
6
damages here would have no effect on the parties’ legal
rights.” Id. at 611. Instead, the entire purpose of the suit, a
challenge to a school district policy that was no longer in
effect, id. at 606-07, was to seek prospective relief, a fact that
the plaintiff’s attorney conceded at oral argument, id. at 610
(noting that counsel acknowledged that “nominal damages are
a vehicle for a declaratory judgment”). Allowing the suit to
proceed to determine “the constitutionality of an abandoned
policy—in the hope of awarding the plaintiff a single dollar—
vindicates no interest and trivializes the important business of
the federal courts.” Id. at 611;5 see also Steel Co., 523 U.S.
at 107 (noting that “[b]y the mere bringing of his suit, every
plaintiff demonstrates his belief that a favorable judgment
will make him happier,” but that this “psychic satisfaction”
does not redress an Article III injury).
Here Schaub does not seek compensatory damages,
but instead seeks only nominal damages, where “the dollar is
not the real objective of the litigation.” Utah Animal Rights
5
In ruling that nominal damages alone did not suffice for standing
purposes, Morrison did not find itself constrained by the Sixth
Circuit’s prior precedent “allow[ing] a nominal-damages claim to
go forward in an otherwise-moot case.” Morrison, 521 F.3d at 611
(citing Lynch v. Leis, 382 F.3d 642, 646 n.2 (6th Cir. 2004), and
Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir.
1981)). However, as discussed at the beginning of Part II, while
these doctrines are closely related, the mootness doctrine is more
flexible due in part to the “sunk costs” of litigation already
conducted. See Laidlaw, 528 U.S. at 190-92.
7
Coal., 371 F.3d at 1264 (McConnell, J., concurring).6 As
with the request for civil penalties to be paid to the United
States Treasury in Steel Co., Schaub seems to be seeking a
remedy that does not provide her with any tangible benefit.
Instead, she appears to be seeking an “authoritative judicial
determination of the parties’ legal rights,” Id. That is
prospective relief, not something that nominal damages can
redress. Morrison, 521 F.3d at 610-11.
Standing alone, with the claims for injunctive and
declaratory relief analyzed separately, I am doubtful that this
“psychic satisfaction [can be] an acceptable Article III
remedy because it does not redress a cognizable Article III
injury.” Steel Co., 523 U.S. at 107; see also N.J. Peace
Action v. Bush, 379 F. App’x 217, 222 (3d Cir. 2010) (saying
that a remedy of declaratory relief “would not take back the
allegedly unlawful orders that [plaintiff] has already obeyed,
nor would it provide any concrete compensation for the
6
In their opening brief, Plaintiffs claim that they are entitled to
nominal damages to compensate them for “the altered conduct they
undertook to avoid the Monument,” not for their unwelcome
contact with the monument in the past. Appellant Br. at 41. This
injury which they seek to be redressed by nominal damages was
not present at the time the suit was filed, as Doe 1 was transferred
to a different school district after the commencement of the suit,
and thus would not suffice to create standing. Laidlaw, 528 U.S. at
191 (stating that a plaintiff must have standing “at the time the
action commences”). Moreover, it is compensatory in nature.
However, in their reply brief, Plaintiffs change their argument to
one based on their past interaction with the monument. This is the
standing analysis that the panel opinion correctly focuses upon.
8
emotional, psychological, and physical injuries that he has
allegedly suffered. Indeed, it is ‘merely speculative’ that any
psychic benefits of declaratory relief would redress the
emotional, physical, and psychological injuries already
suffered by the plaintiffs in this case.” (internal quotation
marks omitted)). If this nominal damages claim is really one
for prospective relief, then this analysis has already been
conducted in the panel opinion. See Kerrigan, 450 F.2d at
489-90 (stating that the claim for nominal damages “is clearly
incidental to the [declaratory] relief sought [and] cannot
properly be the basis upon which a court should find a case or
controversy”). While not problematic in this case, I would be
concerned if our retrospective standing analysis were
considered binding on future panels of our Court in factually
different cases, hypotheticals of which are discussed in Part
III of this opinion.
II.
Plaintiffs first raised the issue of whether nominal
damages alone suffice for justiciability purposes in order to
save the case from mootness if the District Court determined
that the claims for injunctive and declaratory relief were
mooted by Doe 1’s transfer to a different school district.
While we are not faced with the specific question of whether
a claim for nominal damages could save a case from
mootness, it is closely related to the issue that I raise, as the
Supreme Court has said that “the doctrine of mootness can be
described as ‘the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the
commencement of the litigation (standing) must continue
throughout its existence (mootness).’” Laidlaw, 528 U.S. at
9
189 (quoting Arizonans for Official English v. Arizona, 520
U.S. 43, 68 n.22 (1997)). However, Laidlaw also explained
that this phraseology was not entirely accurate, as there is an
important distinction between standing and mootness. Id. at
190 (describing this phrase as a “not comprehensive”
description of the relationship between standing and
mootness). The “[s]tanding doctrine functions to ensure,
among other things, that the scarce resources of the federal
courts are devoted to those disputes in which the parties have
a concrete stake,” while the mootness doctrine involves a
“case [that] has been brought and litigated, often . . . for
years.” Id. at 191-92. While this sunk cost argument “does
not license courts to retain jurisdiction over cases in which
one or both of the parties plainly lack a continuing interest,”
this is “surely . . . an important difference between the two
doctrines.” Id. at 192 (emphasis added); see also Cinicola v.
Scharffenberger, 248 F.3d 110, 118 (3d Cir. 2001)
(describing the “flexible character of the Article III mootness
doctrine” (quoting United States Parole Comm’n v. Geraghty,
445 U.S. 388, 400 (1980))). Thus, while the cases involving
nominal damages and mootness may be instructive, they do
not necessarily dictate what our analysis should be regarding
the sufficiency of nominal damages alone to create standing.
Unlike cases addressing the interplay between nominal
damages and redressability, there are many cases that have
addressed whether a claim for nominal damages saves a case
from mootness. I concede that my concerns about nominal
damages and justiciability do not appear to be shared by the
majority of appellate courts to address the mootness subset of
justiciability. However, the one case that has thoroughly
10
examined the issue expresses the same concerns that I raise
here. As with the standing inquiry discussed in Part I, we do
not have a Third Circuit case directly on point, although we
have held that a claim for nominal damages in conjunction
with one for punitive damages is enough to avoid mootness.
Doe v. Delie, 257 F.3d 309, 314 n.3 (3d Cir. 2001).
Nor has the Supreme Court explicitly addressed this
issue. Arizonans for Official English is its one decision
touching on the relationship between justiciability and
nominal damages. 520 U.S. at 68-70. In that case, the Court
stated that the plaintiff’s attempt to wrest a claim for nominal
damages from a general prayer for relief would not save a
case from becoming moot. Id. at 69-72. It said that such
attempts to save a case from becoming moot by asserting
what it characterized as the “nominal damages solution to
mootness” required, at a minimum, close scrutiny. Id. at 69
& n.24; id. at 69 (“It should have been clear to the Court of
Appeals that a claim for nominal damages, extracted late in
the day from [the plaintiff’s] general prayer for relief and
asserted solely to avoid otherwise certain mootness, bore
close inspection.”). However, the Court had no reason to
either embrace or repudiate whether a valid claim for nominal
damages could save a case from mootness, because the party
against whom nominal damages were sought – the state – was
not a party to the litigation and was also immune to damages
claims under 42 U.S.C. § 1983. Id. at 69-70. At the same
time, it did not explicitly hold that there was no “nominal
damages solution to mootness.” See id. at 69 n.24.
It may be that a majority of our sister circuits have
conflated nominal damages with actual damages in holding
11
that “[a] live claim for nominal damages will prevent
dismissal for mootness.” Bernhardt v. Cty. of Los Angeles,
279 F.3d 862, 872 (9th Cir. 2002); Van Wie v. Pataki, 267
F.3d 109, 115 n.4 (2d Cir. 2001) (stating in dicta that
“plaintiffs in election cases could avoid the potential for
mootness by simply expressly pleading that should the
election pass before the issuance of injunctive relief, nominal
money damages are requested.”);7 Advantage Media, 456
F.3d at 803 (holding that a claim was not moot because the
plaintiff “might be entitled to nominal damages if it could
show that it was subjected to unconstitutional procedures”).
For example, in Bernhardt, the court examined caselaw
making clear that nominal damages could be awarded in the
event that compensatory or punitive damages were
unavailable. 279 F.3d at 872. As discussed further below,
this is a different question from whether nominal damages
standing alone suffice for standing purposes. Despite
acknowledging that “this rule [that standing can save a claim
from mootness] has been challenged as ‘inconsistent with
fundamental principles of justiciability,’” Morgan v. Plano
7
However, this dicta is at odds with the Second Circuit’s case law
on nominal damages and standing. See Hernandez, 487 F.2d at
387 (“Not having found a justiciable controversy permitting a
declaration, the claim for nominal damages, which is clearly
incidental to the relief sought, cannot properly be the basis upon
which a court should find a case or controversy where none in fact
exists.” (quoting Kerrigan, 450 F.2d at 489-90)). As mentioned
earlier, the standing requirement is slightly more rigorous than the
mootness doctrine’s greater flexibility, which may explain the
difference. See Laidlaw, 528 U.S. at 190-92; cf., supra note 5.
12
Indep. Sch. Dist., 589 F.3d 740, 748 n.32 (5th Cir. 2009)
(quoting Utah Animal Rights Coal., 371 F.3d at 1263(McConnell, J., concurring)), some courts nonetheless are
bound by their prior precedent. Id. at 748 (“This court and
others have consistently held that a claim for nominal
damages avoids mootness.”); Utah Animal Rights Coal., 371
F.3d at 1262 (McConnell, J., concurring (“The panel was
constrained to take jurisdiction in this case because of Tenth
Circuit precedent holding that a claim for nominal damages
precludes dismissal of the case on mootness grounds.”). Most
circuits that have held that nominal damages can prevent
mootness reach the result with what I consider to be little
analysis of how a claim for nominal damages would redress a
cognizable injury in fact. It is just possible that “the nominal
damages solution to mootness” is nothing more than a self-
perpetuating myth.8
The Eleventh Circuit draws a distinction between
claims for procedural due process, where a claim for nominal
8
While the Fourth and Seventh Circuit have not explicitly
addressed the issue, they have hinted that a claim for nominal
damages alone would prevent a case from becoming moot. See
Covenant Media, 493 F.3d at 429 n.4 (noting that the plaintiff’s
“suit [was] not moot because if [the plaintiff was] correct on the
merits, it is entitled to at least nominal damages,” because the suit
sought compensatory and nominal damages (emphasis added));
Kelly v. Mun. Courts of Marion Cty., Ind., 97 F.3d 902, 910 (7th
Cir. 1996) (holding a claim moot because the plaintiff “failed to
mention damages, not even nominal damages”). The First,
Federal, and D.C. Circuits do not seem to have indicated their
inclination on the subject one way or another.
13
damages will save a claim from mootness, and other cases,
where the case will be moot despite the presence of nominal
damages. In DA Mortgage, Inc. v. City of Miami Beach, the
court held that “[d]amages claims can save a § 1983 claim
from mootness, but only where such claims allege
compensatory damages or nominal damages for violations of
procedural due process.” 486 F.3d 1254, 1259 (11th Cir.
2007). It draws this distinction based on the Supreme Court’s
decisions in Memphis Community School District v. Stachura,
477 U.S. 299, 310 (1986) (noting that the basic purpose of
damages under § 1983 is compensatory and that “the abstract
value of a constitutional right may not form the basis for
§ 1983 damages”), and Carey v. Piphus, 435 U.S. 247, 266-
67 (1978) (approving the award of nominal damages for a
violation of procedural due process when actual damages
could not be proved). In an unpublished opinion, the
Eleventh Circuit reaffirmed its holding that a claim for
nominal damages saved a case from mootness only when
there was a violation of procedural due process. Freedom
from Religion Found., Inc. v. Orange Cty. Sch. Bd., 610 F.
App’x 844, 846 n.3 (11th Cir. 2015). While this distinction is
one that we could adopt, I am not convinced that the
distinction between procedural due process and other
violations is an appropriate one for justiciability purposes.
Moreover, as discussed further in Part IV, Carey was not a
case about justiciability and was more about the availability
of nominal damages where other damages claims were
ultimately not susceptible to proof.
As the Fifth Circuit acknowledged in Morgan, the first
case to challenge the well-accepted view that nominal
14
damages could save a case from mootness was Utah Animal
Rights Coalition. In this case, the plaintiffs sought injunctive
relief, declaratory relief, and nominal damages in an attempt
to force the city to process their applications to protest the
Winter Olympics. 371 F.3d at 1254 (majority). However,
before the District Court heard argument, the Winter
Olympics occurred, rendering the claims for injunctive and
declaratory relief moot. Then-Judge McConnell9 wrote both
a majority opinion and a concurrence because he felt
“constrained” by Tenth Circuit precedent, which bound the
court to hold “that a claim for nominal damages precludes
dismissal of the case on mootness grounds.” 371 F.3d at
1262 (McConnell, J., concurring). Judge McConnell
concurred so that he could explain why he felt that Tenth
Circuit precedent was incorrect, and to urge “either an en
banc court or the Supreme Court [to] hold that a case that is
otherwise nonjusticiable on account of mootness is not saved
by the mere presence of a prayer for nominal damages.” Id.
at 1263.
I consider Judge McConnell’s concurrence persuasive.
He argues that “nominal damages were originally sought as a
means of obtaining declaratory relief before passage of
declaratory judgment statutes.” Id. at 1265. He cites to
extensive scholarship in support of this view. Id. (citing
Douglas Laycock, Modern American Remedies: Cases and
Materials 561 (3d ed. 2002) (“The most obvious purpose [of
nominal damages] was to obtain a form of declaratory relief
9
On May 5, 2009, Judge McConnell resigned his seat on the Court
of Appeals for the Tenth Circuit in order to serve as the faculty
director of the Stanford Law School’s Constitutional Law Center.
15
in a legal system with no general declaratory judgment act.”),
1 Dobbs, supra, at 295 (“Lawyers might have asserted a
claim for nominal damages to get the issue before the court in
the days before declaratory judgments were recognized.”),
and 13A Wright, Miller & Cooper, Federal Practice and
Procedure, § 3533.3, at 266 (2d ed. 1984)). In fact, that is the
only reason that nominal damages were asserted in our case:
even if the claims for injunctive and declaratory relief were
technically moot, a holding that there had been a past
Establishment Clause violation – and that Schaub would be
entitled to nominal damages – would have the practical effect
of requiring the school district to take down the Ten
Commandments monument. Schaub is not seeking to be
compensated for a past constitutional violation; her sole
objective is to prevent the alleged constitutional violation
from continuing. See Morrison, 521 F.3d at 610 (“No readily
apparent theory emerges as to how nominal damages might
redress past [harm].”).
Instead of allowing such a claim to proceed in federal
court, if we agreed with the District Court that the claims for
injunctive and declaratory relief were moot, a proper result
would be to hold that the claim is non-justiciable. Utah
Animal Rights Coal., 371 F.3d at 1262 (McConnell, J.,
concurring) (“Federal Courts . . . are not debating societies to
determine whether past actions and defunct ordinances were
constitutional. Federal courts exist to resolve live
controversies, to remedy wrongs, and to provide prospective
relief.”). As in our case, plaintiffs in Utah Animal Rights
Coalition did not seek compensatory relief. Thus, Judge
McConnell would say that there is “no retrospective relief
16
[the court] could grant that might make them whole for the
alleged constitutional violation,” and thus there would be “no
point in deciding whether the former ordinance was
unconstitutional on its face.” Id.; see also id. at 1263 (stating
that a case is not justiciable merely because “a plaintiff
wishes to have the moral satisfaction of a judicial ruling that
he was right and his adversary was wrong”). As Judge
McConnell noted, to hold otherwise would allow litigants to
avoid mootness of claims for injunctive relief by simply
“appending a claim for nominal damages” to the complaint.
Id. at 1266; see Van Wie, 267 F.3d at 115 n.4 (“[P]laintiffs in
election cases could avoid the potential for mootness by
simply expressly pleading that should the election pass before
the issuance of injunctive relief, nominal damages are
requested.”).
Judge McConnell’s separate opinion on mootness in
Utah Animal Rights Coalition served as the analytical
underpinning behind the Sixth Circuit’s standing analysis in
Morrison. I also find this persuasive, while at the same time
acknowledging the weight of precedent from other circuits
that support the prevailing view.
III.
None of the cases cited in our opinion addresses a
claim for nominal damages, so none had a need to engage in
the inquiry into past harm that the panel does. In fact, in this
case, Plaintiffs on appeal originally based their claim for
nominal damages on “the altered conduct they undertook to
avoid the Monument,” not on their unwelcome contact with
the monument in the past. Appellant Br. at 41. There is a
17
simple explanation for that: the real remedy sought at the time
the complaint was filed was the removal of the Establishment
Clause violation and a declaration of its unconstitutionality,
not the $1 in nominal damages. The difficulty in concluding
that a request for nominal damages suffices to confer standing
for past harm is apparent when we consider this case with
different facts.
Imagine a scenario in which the school district
immediately took down the monument after Schaub
complained of it. Nonetheless, she still sued for nominal
damages. Would we say that she has standing to sue to
remove this monument? Following the analysis conducted in
the panel opinion, it seems that we would have to conclude
that, due to Schaub’s past interactions with the monument,
she would have standing because nominal damages serve to
remedy a past harm. Thus, the federal courts would need to
adjudicate the merits of this alleged Establishment Clause
violation. I am doubtful that this is the case because I do not
see how nominal damages redress any past harm outside of
the psychic satisfaction of the plaintiff being told that she was
right. Steel Co., 523 U.S. at 107 (holding that a remedy does
not redress an injury merely because it allows the suitor to
“derive great comfort and joy”); Morrison, 521 F.3d at 611(“To confer nominal damages here would have no effect on
the parties legal rights.”); Utah Animal Rights Coal., 371 F.3d
at 1263 (McConnell, J., concurring) (“It is not enough that a
plaintiff wishes to have the moral satisfaction of a judicial
ruling that he was right and his adversary was wrong.”).
Similarly, and more comparable to Utah Animal Rights
Coalition, what if we agreed with the District Court that
18
Plaintiffs’ claim for injunctive relief was moot? This appears
to be the only reason why Plaintiffs raise the argument that
nominal damages would nonetheless preserve their claim, as
they never argued that they had standing separate from their
claim for injunctive relief in the District Court. Would we
instruct the District Court to rule on the Establishment Clause
claim because of the presence of nominal damages? I
seriously question whether a “case or controversy” would
remain. Id. at 1270 (“If a claim for nominal damages cannot
become moot, and is eligible for fees under § 1988 . . .
plaintiffs may be induced to waste legal and judicial resources
by continuing litigation when there is no longer any point to
it.”). While neither scenario is before us, they are not outside
the realm of possibility.10 Indeed, they are similar to the
10
In fact, in another case in the Western District of
Pennsylvania, the court recognized that this was an issue of
first impression for our circuit. It held that a “valid claim for
nominal damages” was enough to avoid mootness even
though it “seems ‘odd that a complaint for nominal damages
could satisfy Article III’s case or controversy requirements.’”
Freedom from Religion Found., Inc. v. Connellsville Area
Sch. Dist., 127 F. Supp. 3d 283, 300 (W.D. Pa. 2015)
(quoting Utah Animal Rights Coal.., 371 F.3d at 1257(majority opinion)). On the other hand, a court in the
Southern District of Indiana recently held that “a claim for
nominal damages alone is not sufficient enough to maintain
federal court jurisdiction in a case that is otherwise moot.”
Freedom from Religion Found., Inc. v. Franklin Cty., Ind.,
133 F. Supp. 3d 1154, 1160 (S.D. Ind. 2015); see also id.(“By allowing FFRF to proceed to determine the
19
facts of Morrison and Utah Animal Rights Coalition. I am
concerned that the panel opinion’s analysis will control in
similar cases.
IV.
My doubts about the panel opinion’s separate standing
analysis of nominal damages does not question the
uncontroversial point that a plaintiff may receive only an
award of nominal damages for past harm. That is a common
occurrence when the finder of fact agrees with a plaintiff that
her right was violated but the plaintiff has failed to show
actual damage. See, e.g., Carey, 435 U.S. at 266 (holding that
nominal damages would be an appropriate remedy for a
procedural due process violation even if the district court
ultimately concluded that compensatory damages were
inappropriate due to the lack of actual harm); Utah Animal
Rights Coal., 371 F.3d at 1264 n.2 (“In some cases, the
plaintiff may seek compensatory damages at the outset of
trial, but the court may award nominal damages based on the
conclusion that the defendant violated the plaintiff’s right but
the plaintiff could not prove actual damage.”). In fact, the
Supreme Court has held that a plaintiff who wins only an
award of nominal damages may be entitled to “prevailing
party status” for the purposes of seeking attorneys’ fees under
42 U.S.C. § 1988. Farrar v. Hobby, 506 U.S. 103, 116
(1992) (O’Connor, J., providing the fifth vote concurring in
judgment). At the same time, Justice O’Connor said that
constitutionality of a policy that has been voluntarily
amended to cease illegal conduct, in hope of receiving $1.00,
vindicates no rights and is not a task of the federal courts.”).
20
where “the plaintiff’s success is purely technical or de
minimis, no fees can be awarded. Such a plaintiff either has
failed to achieve victory at all, or has obtained only a Pyrrhic
victory for which the reasonable fee is zero.” Id. at 117. She
acknowledged that sometimes nominal damages can represent
a victory when they vindicate certain rights; but in Farrar,
where the plaintiff won an award of $1 out of $17 million
sought, and only from the least culpable of six defendants,
this was not such a victory even though he had prevailed in
showing a constitutional violation. Id. at 120-21. Neither
Farrar nor Carey addressed a claim for nominal damages
alone, without accompanying claims for compensatory relief.
Thus, if Schaub had sought compensatory damages
here for any past harm, then we would have to conduct a
backwards-looking standing inquiry. She ultimately may not
have been entitled to compensatory damages, and only
recovered an award of nominal damages – like the plaintiff in
Farrar – but that would not be a bar to finding standing.
Plaintiffs obviously did not seek such compensatory
damages at the time their suit was filed because they had not
yet made the decision to move Doe 1 to another school
district. However, we must address standing at the time the
suit was filed, when only the claim for nominal damages was
sought. Laidlaw, 528 U.S. at 190 (“[I]f a plaintiff lacks
standing at the time the action commences, the fact that the
dispute is capable of repetition yet evading review will not
entitle the complainant to a federal judicial forum.”).
Plaintiffs have provided no explanation for how nominal
damages would redress any past injury present at the time of
the filing of the lawsuit.
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V.
For the reasons stated herein, I concur dubitante. On
the one hand, most courts to address the impact of nominal
damages on a court’s justiciability analysis have held that a
claim for nominal damages preserves a live case or
controversy and saves a case from mootness. However,
nominal damages do not appear to redress any past injury. I
wonder if our decision will create binding precedent in our
Court for an issue that I do not think we need to reach.
Schaub clearly has standing to seek injunctive and declaratory
relief. I question the need to conduct a separate standing
analysis for nominal damages. Perhaps when this issue is
squarely presented and more fully litigated – such as when a
plaintiff brings a claim solely for nominal damages or if we
are asked to determine whether a claim for nominal damages
saves a case from mootness – this issue will be worthy of en
banc consideration by our full Court.
22