McCONNELL, Circuit Judge.
In February of 2002, many of the world's most talented athletes, along with spectators, journalists, and world leaders, descended on Salt Lake City, Utah, for the 2002 Winter Olympics. In addition to the officially scheduled Olympic events, many hundreds of groups and individuals used the occasion to speak out on issues of concern through street demonstrations, distribution of pamphlets, evangelism, and other modes of expression. One of those groups was Appellant, the Utah Animal Rights Coalition ("UARC"), an advocacy organization devoted to making "the plight of animals in the world known to people in Utah." The Appellees, defendants below, are Salt Lake City and certain officials who had the responsibility of determining when and where various groups would be permitted to demonstrate, and of issuing permits accordingly. The question is whether the slow pace of the permit process violated the First Amendment.
Almost a year before the Olympics — and well before the City had determined where Olympic events would be held — UARC submitted an application for permits to demonstrate on public property at five specified locations. For approximately eight months, the City took no action on UARC's application. The City then denied UARC's application on account of conflicts with Olympics-related activities, and suggested alternative sites for UARC's demonstrations. UARC filed an amended application and ultimately received permits to demonstrate at four locations, two of them at or near the locations requested in the amended application. Only two claims are at issue in this case: (1) a facial challenge to the then-operative ordinance, on account of its lack of written deadlines for processing permit applications, and (2) an as-applied challenge contending that the time elapsed in processing UARC's permit application, from March 9 to November 15, 2001, was unconstitutionally prolonged.
The district court granted summary judgment to Defendants with respect to both claims. The court held that UARC lacked standing to bring either claim. In the alternative, the court granted summary judgment on the facial claim on
A. Salt Lake City's Permit Ordinance
UARC's application to conduct demonstrations on public property during the Olympics was processed in accordance with Salt Lake City Code § 3.50 (sometimes referred to hereafter as "the Ordinance"). The Ordinance was substantially amended in May, 2002, after the Olympics were over. The following is a summary of the relevant provisions in effect at the time.
In setting procedures for the issuance of permits, the Ordinance distinguishes between "commercially related" and "free expression" activities, and further distinguishes between "short notice" and "advanced planned" activities. UARC's permit was governed by the standard for advanced planned free expression activities, Section 3.50.130:
Sections 3.50.110A and C assure that major traffic routes remain accessible and that demonstrations do not interfere with public safety vehicles. Section 3.50.110B prohibits interference with:
These provisions give priority to commercially related special events, certain governmental functions, and other events for which a permit was previously granted. They make no reference to the content of the expressive activity, and do not authorize the events coordinator to take the content of the expressive activity into account. In accordance with this provision, the City gave priority to the official Olympic events organized by the Salt Lake Organizing Committee ("SLOC"), which had submitted a prior application for a special event permit at various locations in the City.
Once the official Olympic events and provision for public health and safety services were established, the City allocated rights to use public property among the many competing applicants, including UARC. Conflicts among permit applications were governed by § 3.50.180:
Like Section 3.50.130, this section is entirely content-neutral. Although it gives priority to government-sponsored and historic-usage events, these categories are not based on the content of the intended speech; in other respects priority is based on the principle of first come, first served.
The Ordinance also contains provisions for expedited review of the events coordinator's determinations:
Code § 3.50.210. Applicants have the right to seek judicial review of the outcome of this appeal process. See, e.g., Walker v. Weber County, 973 P.2d 927, 929-30 (Utah 1998) (holding that the writ provision of Rule 65B was properly invoked to allow Utah Supreme Court to determine whether county officials improperly changed a ballot initiative); Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 682 (Utah 1995) (suggesting that an appeal of decision was also available under the writ provisions of Rule 65B of the Utah Rules of Civil Procedure); KUTV, Inc. v. Conder, 668 P.2d 513, 517 (Utah 1983) (noting that a writ was properly invoked in First Amendment context when no other adequate remedy by way of appeal was available).
It is undisputed that the Ordinance, as it existed at the time of this dispute, contained no requirement that the events coordinator process permit applications for "advanced planned free expression activities" within any particular time.
On May 7, 2002, after the events at issue in this case but before the district court held argument on the motions for summary judgment, the City amended its ordinance concerning special events to require all permits for demonstrations to be acted upon within 28 days. See Affidavit of Boyd A. Ferguson ("Ferguson Aff."), App. 137-40.
B. UARC's Application
Almost a year in advance of the Olympics, on March 9, 2001, UARC applied for permits to demonstrate on public property at five locations it expected would be close to scheduled Olympic events, including the Olympic Opening Ceremonies, figure skating events at the Delta Center, and the daily medals ceremonies. Shawn McDonough, the Special Events Coordinator for Salt Lake City, responded to UARC's request by letter on April 5, 2001. In that letter, Ms. McDonough informed UARC that "[t]he City has received a prior application from the Salt Lake Organizing Committee for a special event permit for those times and areas during the Olympic Games." [App. 39.] The letter further stated that the City would respond to UARC's application within 90 to 120 days, that is, by August 3, 2001. The City failed to do so. Ms. McDonough subsequently explained in an affidavit that the
[Affidavit of Julia S. McDonough ("McDonough Aff.") ¶ 7, App. 142-43.]
Then came the terrorist attacks on September 11, 2001. As the district court
On October 8, 2001, UARC wrote the City to complain of its failure to act on the organization's permit application. UARC informed the City that it construed the City's failure either to approve or to deny the request as a denial of the application, and requested a review of the denial through the City's appeal process. On October 15, 2001, Ms. McDonough replied to UARC's counsel by letter, stating that any appeal would be premature because its application had not yet been denied, and only a denial of the application was appealable under Code § 3.50.210. [McDonough Aff. ¶ 9, App. 143.] She explained in the letter that
[Letter from S. McDonough to B. Barnard (Oct. 15, 2001), App. 44.] The letter indicated, however, that the SLOC permit would be completed soon.
On October 22, 2001, UARC filed a complaint in federal district court pursuant to 42 U.S.C. § 1983, alleging that the then-applicable Section 3.50 was unconstitutional both on its face and as applied to UARC, because of the delay in processing UARC's permit application. UARC requested a temporary restraining order and preliminary and permanent injunctions requiring the City to process its application. It further requested nominal damages and declaratory relief finding that the City had violated UARC's constitutional rights under the First and Fourteenth Amendments.
On February 4, 2002, the City approved the requested location on Pierpont Avenue and a location very close to the other requested site, on a parking strip on the west side of 400 West, approximately 200 feet north of the north curb face on North Temple. [Id. ¶ 12, App. 143-44.] In addition, UARC was given permits to protest at two additional sites close to Olympic events: at Washington Square and on 500 South close to Rice-Eccles Stadium, the venue for the Olympics' Opening and Closing Ceremonies. [Id.] UARC apparently conducted demonstrations at these sites.
C. Proceedings in District Court
The district court addressed both UARC's facial and as-applied claims on UARC's motion for summary judgment. Although the City did not formally file a cross-motion for summary judgment, the district court noted that the City essentially asked for summary judgment in its responsive pleadings. The court then exercised its discretion to treat the City's pleadings as a cross-motion for summary judgment, and granted the City summary judgment on all claims. The court held that UARC lacked standing to bring its as-applied challenge and, in the alternative, that the as-applied challenge failed on the merits. It also held that the facial challenge was moot because the City had amended the ordinance in such a way that it addressed UARC's concerns.
Of special relevance to our disposition of this appeal, it is important to note, as did the district court, that "UARC's complaint challenges only the City's delay in processing the March application — that is, the delay from the application on March 9 to the denial on November 15. At argument on this matter, counsel for UARC agreed that the only issue before the Court is appropriateness of the delay from March 9 to November 15." Op. 5. Thus, neither in district court nor in this Court have Appellants challenged either the delay in processing their revised application — from November 29, 2001, to February 4, 2002 — or the adequacy of the locations at which they were permitted to demonstrate.
The Constitution commands that we determine whether an Article III case or controversy is before us, whether or not the issue has been properly raised by the parties. U.S. Const. art. III, § 2. In this case, that command requires us to consider both standing and mootness. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir.2002) (standing); Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1181-82 (10th Cir.2000) (mootness). These jurisdictional limitations help to confine the exercise of judicial authority to cases of a "judiciary nature": those brought by parties who have suffered an actual injury that can be redressed by a judgment of the court. Standing generally deals with the question of "who" and mootness with the question of "when."
Standing is an essential part of Article III's case-or-controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There are three elements to Article III standing: 1) injury-in-fact; 2) causation; and 3) redressability. Essence, 285 F.3d at 1280. An injury-in-fact is an "`invasion of a legally protected interest' that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or hypothetical." Id., quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. Causation is found upon a showing that the injury is "`fairly trace[able] to the challenged action of the defendant,' rather than some third party not before the court." Id., quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (brackets in original). Redressability requires the plaintiff to show that it is "likely that a favorable court decision will redress the injury to the plaintiff." Id. "The burden to establish standing rests on the party invoking federal jurisdiction." Id. When the standing issue is raised at the summary judgment stage, the party moving for summary judgment "must establish that there exists no genuine issue of material fact as to justiciability," and "mere allegations [of injury, causation and redressability] are insufficient." Dep't of Commerce v. United States House of Representatives, 525 U.S. 316,
The district court granted summary judgment against UARC with respect to both its facial and its as-applied challenge, on the ground that "UARC has failed to show any concrete or particularized injury." Op. 5. The district court noted that UARC claimed that delay on the City's part hampered UARC's ability "to organize, coordinate, etc., their activities, demonstrations, protests, etc." Id. at 6, quoting Diener Aff. ¶ 24, App. 51. But according to the court, the organization was "unable to provide any specific examples of logistical difficulties that resulted from the City's delay," and admitted that it could not show any "special damages." Id. Thus the complaint was "simply too speculative to demonstrate standing." Op. 6.
We believe that the district court took too narrow a view of Plaintiff's injury. UARC contends that the City's permitting scheme impermissibly delayed the process in direct contravention of the standards mandated by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Whether UARC reads those cases correctly may be a matter of some question. But we must not confuse standing with the merits. If UARC is correct on the merits, it was entitled to receive an answer to its permit application long before November, 2001, which would have given the group more time to organize its demonstration (if the permit were granted) or to pursue appeals or modified applications (if it were denied). It may be true, as the district court noted, that the organization was able to overcome any logistical difficulties caused by the delay, and to conduct demonstrations at appropriate locations during the Olympics. If UARC is correct on the merits, however, the group was entitled under the First Amendment to a more expeditious process than it received. The injury may have been small, and — as UARC concedes — insufficient to support a claim for compensatory damages; but it was not "speculative."
Mootness presents a more serious hurdle. "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). "A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). "The crucial question is whether `granting a present determination of the issues offered ... will have some effect in the real world.'" Davidson, 236 F.3d at 1182, quoting Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir.1999).
The district court held that UARC's facial challenge to Section 3.50 is moot because the City has amended the ordinance to require review within 28 days, which cures the alleged defect in the original permitting scheme. Op. 10-11. The court did not address whether the as-applied challenge was moot, and instead resolved that claim on the merits and on standing grounds.
The district court was correct that in general, "the repeal of a challenged statute is one of those events that makes it `absolutely clear that the allegedly wrongful behavior ... could not reasonably be expected to recur.'" Op. 11, quoting Davidson,
For similar reasons, UARC's prayer for "a temporary restraining order, a preliminary injunction and a permanent injunction against the defendants requiring them to process the applications submitted by plaintiff," Complaint ¶ 31, App. 9, is also moot. The alleged violation took place in 2001, the Olympics have come and gone, and neither temporary restraining order, preliminary injunction, nor permanent injunction could have any present-day effect. Moreover, UARC has abandoned any claim for compensatory damages; thus, there is no claim that monetary damages could recompense the Plaintiff for prior injury. See Pl.'s Mem. Re: Pl.'s Mot. for Summ. J., App. 90, 91; see also Op. 6. Any judgment on the constitutionality of the City's treatment of UARC's 2001 permit application would therefore be of no legal effect. To be sure, there is a recognized exception to mootness principles when a violation is "capable of repetition, yet evading review." Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594 n. 6, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999); Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). But that exception is inapplicable here, where the Ordinance has been amended to cure the alleged constitutional problem. This controversy is over, and it will not recur. Accordingly, UARC's as-applied challenge is also moot, insofar as UARC requested injunctive relief.
However, in its complaint, in addition to declaratory and injunctive relief, UARC also sought nominal damages of one dollar in connection with both its facial and its as-applied claim. Complaint ¶¶ 32, 36, App. 10-11; see also Appellant's Br. 12 (stating "UARC sought below (and herein seeks) nominal damages in the sum of one dollar ($1.00) as a result of harm suffered by the City's delay and lack of specific written deadlines to process applications for permits.").
III. The Facial Constitutionality of Former Section 3.50
Regulations governing the use of public property for free expression are not "inconsistent with civil liberties but ... [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend." Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Permitting schemes are necessary to ensure that scarce space is allocated among conflicting applicants, to protect public access to thoroughfares and public facilities, and to enable police, fire, and other public safety officials to function. In general, content-neutral time, place, and manner regulations governing use of public property are permissible so long as they are narrowly tailored to serve a substantial governmental interest and leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
UARC does not allege that the former Section 3.50 was content-based or that its permit application was handled differently on account of the content or viewpoint of its message. Rather, UARC's argument is based on the absence of any deadlines for grant or denial of permit applications under Section 3.50. It contends that the Ordinance is a form of prior restraint, and that the absence of written deadlines rendered the former Section 3.50 facially unconstitutional under the Supreme Court's decisions in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and FW/PBS v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
In Freedman, the Supreme Court invalidated a statute under which a theater owner was required to submit any film it wished to exhibit to the State Board of Censors for advance approval. Among other constitutional defects in this scheme, the Supreme Court noted that the absence of any requirement that the approval process be completed promptly would enable the Board to censor films through delay. The Court thus held that any restraint of speech under such a scheme must "be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial administration." 380 U.S. at 59, 85 S.Ct. 734. Similarly, in FW/PBS, the Court held that a licensing scheme for sexually oriented speech must "set reasonable time limits on the decisionmaker." 493 U.S. at 227, 110 S.Ct. 596 (plurality opinion). See also Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 802, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (a licensing scheme for solicitations requires definite time limits because "delay compels the speaker's silence"); Am. Target Adver., Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir.2000) (because the plaintiff "is barred from aiding any solicitations within the state until it complies with all the Act's
As the district court recognized, this case does not present the same problem posed by the prior restraint cases. In Freedman, FW/PBS, Riley, and American Target, each day of delay in acting on the application was a day in which the speaker was forced to be silent. As the district court put it: "the government was directly preventing speech at the time the challenge was brought." Op. 6. The same is not true when the desired speech will not take place until some future date. In this case, for example, UARC's desired demonstrations would not take place for almost a year after it filed its application. Thus, "the City's delay in processing UARC's application in no way prevented it from speaking." Id. at 8. Thus, while it is true that any "restraint" on speech pursuant to a content-based licensing or censorship scheme must be limited to the "shortest fixed period compatible with sound judicial resolution," Freedman, 380 U.S. at 59, 85 S.Ct. 734, that principle does not undermine Section 3.50, because under that section, speakers are not restrained from speaking at the time of the processing delay.
Moreover, as the district court also concluded, this case is governed not by Freedman and its progeny, which apply to content-based licensing or censorship schemes, but by Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). In Thomas, the Court upheld a municipal park ordinance requiring groups to obtain a permit before conducting activities in the parks involving more than 50 persons. The Court clarified that the procedural requirements outlined in FW/PBS, 493 U.S. at 225-27, 110 S.Ct. 596, which were spawned by the concerns of censorship present in the Freedman case, 380 U.S. at 57, 85 S.Ct. 734, were not applicable to ordinances that did not authorize a licensor to "pass judgment on the content of speech." Thomas, 534 U.S. at 322, 122 S.Ct. 775. The Court observed that it had "never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman." Id.
UARC's confusion on this point of law is understandable because, prior to the Thomas decision, the scope and applicability of the doctrine of prior restraint was far
New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir.2002) (case citations shortened and parallel citations omitted).
As discussed above, Section 3.50 is content-neutral. In Rock Against Racism, the Court stated that "[t]he principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." 491 U.S. at 791, 109 S.Ct. 2746. Section 3.50.020G provides:
This provision obviously makes no reference to the content or viewpoint of "free expression" activity. In administering the Ordinance, City officials are not required — nor are they permitted — to consider the messages applicants intend to communicate. An animal rights group receives precisely the same consideration as a pro-life demonstration, a religious vigil, or a pep rally for the local basketball team. Section 3.50 is a measure designed to preserve public safety and "coordinate multiple uses of limited space," Thomas, 534 U.S. at 323, 122 S.Ct. 775, while maintaining public safety, without regard to the content of speech or the message or viewpoint of permit applicants.
Under the guidance of Thomas, then, our inquiry narrows to whether the regulations: 1) possess adequate standards to guide the exercise of official discretion and make possible meaningful judicial review; and 2) are narrowly tailored to a significant state interest while leaving open satisfactory alternative means of communication. See 534 U.S. at 323 & n. 3, 122 S.Ct. 775. UARC does not appear to argue that the Ordinance violates these requirements, and we therefore need not delve into them. Because there is no constitutional requirement for a fixed deadline in the context of permit applications under a content-neutral regulatory scheme, and UARC does not challenge any other aspect of the Ordinance under the Thomas criteria, we reject UARC's facial challenge to the former Section 3.50.
IV. UARC's As-Applied Challenge
Even apart from its facial challenge to Section 3.50, UARC contends that the City violated its First and Fourteenth Amendment rights by unreasonably delaying a decision on its permit application. Specifically, UARC contends that the roughly 240-day period from March 9, 2001, when it filed its application, to November 15, 2001, when the application was denied, was unconstitutionally protracted,
We do not agree. Planning for the Winter Olympics was a mammoth undertaking, made all the more difficult by the security concerns in the wake of September 11. It was not possible to determine where any one group could demonstrate until the official Olympic events were located, security needs assessed, and competing applications taken into consideration. As of October 22, 2001, when UARC filed this lawsuit, the City had not yet finished work on SLOC's Large-Scale Special Event Permit, which had priority. As the City events coordinator wrote to UARC on October 15, 2001:
[Letter from S. McDonough to B. Barnard (Oct. 15, 2001), App. 44.] Once SLOC's large-scale permit was issued, the City acted promptly to deny UARC's original application and to propose acceptable alternative locales for its planned demonstrations. In light of "the extraordinary logistical, security, and other considerations involved in hosting the games," we agree with the district court that "the City's delay in acting on UARC's request was reasonable." Op. 9.
The precedents cited by UARC all involve situations where constitutionally protected speech was delayed by the slow processing of the permit applications. See Appellant's Br. 15-22. As noted in the previous section, different constitutional considerations apply to activities planned in advance. UARC filed its permit application some eleven months before its demonstrations were to take place. It may be convenient for applicants to have nearly a year to "orchestrate their protests and demonstrations," id. at 19, but they have no constitutional right to demand that city officials make decisions affecting countless other people so long before interrelated decisions have been made. It was reasonable for the City to work out arrangements for the location and timing of Olympic venues, along with attendant security and public health and safety concerns, and then to turn its attention to applications for demonstration permits. The City acted on UARC's permit roughly two and a half months before the Olympics began. We consider that more than adequate, under the circumstances, to satisfy the demands of the First Amendment.
We are more troubled by the fact that UARC did not receive final word on its modified application until February 4, 2002 — four days before the Winter Olympics (and UARC's planned demonstrations) were to begin. But in district court, UARC specifically limited its constitutional challenge to "the delay from March 9 to November 15." Op. 5. Moreover, the record contains no information regarding the process between November 15 and April 2, other than the final result. Thus, we have
For the foregoing reasons, the decision of the district court is AFFIRMED.
McCONNELL, J., concurring.
This case is reminiscent of the coroner's verdict in The Wizard of Oz: It's not only merely moot, it's really most sincerely moot. In March, 2001, Plaintiffs filed an application for a permit to conduct protests on public property during the 2002 Winter Olympics. At the time Plaintiffs brought this lawsuit, seven months later, the City had not yet acted on their application. Believing they were constitutionally entitled to prompt action on their permit application, Plaintiffs filed suit for a temporary restraining order, preliminary injunction, and permanent injunction "against the defendants requiring them to process the applications submitted by plaintiff," and for a declaratory judgment that the City's Ordinance governing demonstration permits was unconstitutional insofar as it lacked "specific written deadlines in processing applications for permits." Complaint ¶¶ 30, 35, App. 9, 10. Plaintiffs also sought nominal damages of $1 in connection with both their facial and their as-applied claims. Id. ¶¶ 32, 36, App. 10-11.
By the time argument took place in district court, the Winter Olympics had taken place; Plaintiffs' application had been denied (two and one half months before the Olympics); Plaintiffs had filed a modified application; they had received demonstration permits; they had conducted demonstrations pursuant to those permits; and the City had amended the Ordinance to require action on permit applications within 28 days. One would think the controversy was over. Plaintiffs nonetheless continue to pursue this litigation, seeking a judicial holding that the eight-month delay in processing their application was unconstitutional and that the Ordinance in its pre-amended form was facially unconstitutional.
Federal courts, however, 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. There is no relief a court can order now that would undo the delay in processing Plaintiffs' application, which occurred in 2001. Certainly, there is no basis for granting Plaintiffs' requested temporary restraining order, preliminary injunction, or permanent injunction to "process plaintiffs' application." Their application was processed long ago, and there is nothing more to be done. Moreover, because Plaintiffs do not seek compensatory damages, there is no retrospective relief we could grant that might make them whole for the alleged constitutional violation. There is no point in deciding whether the former ordinance was unconstitutional on its face, because it has been amended to correct the alleged constitutional defect. And there is no possibility that Plaintiffs will be subjected to similar, allegedly unconstitutional, treatment in the future, because the amended ordinance now requires prompt decision on permit applications. In other words, this controversy is over, it will not recur, and there is nothing this Court can do to affect the matter. If ever a case were fully and completely moot, it is this one.
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. Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir.1992); O'Connor
"Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.... To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (citations omitted); see also North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (citations omitted). "[P]ast exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effect." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir.1996); see also Horstkoetter v. Dep't of Public Safety, 159 F.3d 1265, 1276-77 (10th Cir.1998) (where there is no realistic possibility that the allegedly unconstitutional conduct toward the plaintiff will recur, claims for injunctive and declaratory relief pertaining to past conduct are moot).
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; the relief sought must have legal effect in determining the present and future rights and obligations of the parties. "The crucial question is whether `granting a present determination of the issues offered ... will have some effect in the real world.'" Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000), quoting Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir.1999); see also Colorado Off-Highway Vehicle Coalition v. United States Forest Serv., 357 F.3d 1130, 1133 (10th Cir.2004) ("A `case or controversy' no longer exists when it is impossible for the court to grant any effectual relief whatsoever to a prevailing party."); Air Line Pilots Ass'n v. UAL Corp., 897 F.2d 1394, 1396-97 (7th Cir.1990) (the test is whether the relief sought would "make a difference to the legal interests of the parties (as distinct from their psyches, which might remain deeply engaged with the merits of the litigation)").
This case involves questions of both mootness and standing. These are closely related doctrines. Standing doctrine addresses whether, at the inception of the litigation, the plaintiff had suffered a concrete injury that could be redressed by action of the court. Mootness addresses whether the plaintiff continues to have such a stake throughout the course of the litigation. The Supreme Court has described the doctrine of mootness 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)." Arizonans for Official English, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055,
At the time this suit was filed, the Utah Animal Rights Coalition ("UARC") was allegedly suffering injury by virtue of the City's allegedly unconstitutional delay in acting on its demonstration permit, and the injury could be redressed by injunctive relief ordering the City to process the permit application. As the panel opinion explains, UARC thus had standing to bring this suit. As noted above, however, by the time the district court heard argument and rendered its decision, UARC was no longer suffering any ongoing injury as a result of the City's challenged practices and the challenged ordinance had been amended to correct the alleged constitutional flaw. Thus, the "requisite personal interest that existed at commencement of the litigation [,]" Arizonans for Official English, 520 U.S. at 68 n. 22, 117 S.Ct. 1055, no longer existed. The question is whether a claim for nominal damages is sufficient to keep alive a controversy that otherwise is moot.
"Nominal damages are damages in name only, trivial sums such as six cents or $1." 1 Dan B. Dobbs, Dobbs Law of Remedies § 3.3(2), at 294 (2d ed.1993). They do not purport to compensate for past wrongs. They are symbolic only. But that does not mean they are without legal import. There are times when an authoritative legal determination of a dispute is all that the parties require: neither damages nor injunctive relief are necessary. Nominal damages can be a practical and effective remedy, both in constitutional and in other civil cases, where there is a genuine case or controversy between the parties but the injury to the plaintiff is not monetary and there is no basis for compensatory damages. See id.; Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). When neighboring landowners wish to obtain a legal determination of a disputed boundary, for example, one might sue the other for nominal damages for trespass. See Douglas Laycock, Modern American Remedies: Cases and Materials 561 (3d ed.2002). In such a case, the dollar is not the real objective of the litigation. The point is to obtain an authoritative judicial determination of the parties' legal rights. The judgment for the plaintiff — reflected in the award of nominal damages — fully redresses the plaintiff's injury, and resolves the boundary dispute for the future. Similarly, plaintiffs sometimes seek nominal damages in libel suits in order to vindicate their reputations by proving that the supposed libel was a falsehood; but they do not necessarily assert that they suffered any monetary loss.
An analogy may be drawn to declaratory judgments. Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes. See Laycock, supra, at 561 ("The most obvious purpose [of nominal damages] was to obtain a form of declaratory relief 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."); 13A Wright, Miller & Cooper, supra, § 3533.3, at 266 ("The very determination that nominal damages are an appropriate remedy for a particular wrong implies a ruling that the wrong is worthy of vindication by an essentially declaratory judgment"). For justiciability purposes, I see no reason to treat nominal and declaratory relief differently.
It is well established that the Declaratory Judgment Act "enlarged the range of remedies available in the federal courts but did not extend their jurisdiction." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); see also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 15, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); United Food & Commercial Workers Union, Local 1564 v. Albertson's, Inc., 207 F.3d 1193, 1197 (10th Cir.2000). Thus, if a case is otherwise moot, the existence of a prayer for declaratory relief does not keep the case alive. Preiser, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272; Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); see Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991) ("plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured in the future"); 10B Wright, Miller & Cooper, supra, § 2757, at 495 (1998) ("a declaratory judgment cannot be given, if a matter has become moot"). The same should be true of nominal damages. Nominal damages, like declaratory judgments, are a form of remedy available in cases
Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading. It is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness. Article III justiciability should not be so manipulable.
This is not to say that a lawsuit in which nominal damages are the only claim for relief is always or necessarily moot. The question, as with declaratory judgment actions involving past conduct, is whether an award of nominal damages will have practical effect on the parties' rights and responsibilities in the future. Preiser, 422 U.S. at 401-04, 95 S.Ct. 2330; Golden, 394 U.S. at 108-10, 89 S.Ct. 956; see also Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam) (holding that entry of a declaratory judgment after a case had become moot does not constitute "relief" for purposes of attorneys fees under § 1988 because it does not "affect the behavior of the defendant toward the plaintiff"). For reasons already explained, a declaratory judgment action involving past conduct that will not recur is not justiciable. That is equally true here. Labeling the requested relief "nominal damages" instead of "declaratory judgment" should not change the analysis.
The Supreme Court has noted that where constitutional rights have been violated, an award of nominal damages "recognizes the importance to organized society that those rights be scrupulously observed." Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). It might be argued that vindication of such rights remains important even when the legal rights and obligations of the parties will not be affected by the remedy. But the argument proves too much; it is essentially an argument against the mootness doctrine in constitutional cases. If society's interest in "vindicating" constitutional wrongdoing in this abstract sense were sufficient to support Article III justiciability, no constitutional case would ever become moot.
The Supreme Court has never held that a claim for nominal damages is sufficient to maintain the justiciability of a case that otherwise would be moot. In neither of the Supreme Court's leading cases on nominal damages did the issue of mootness arise. See Carey, supra; Memphis Community School Dist., supra. In Carey, the plaintiffs had received a substantial damages award from the jury. The Supreme Court reversed that award, held that the plaintiffs were entitled to "at least" nominal damages, and remanded to the lower court to determine whether the plaintiffs were also entitled to compensatory damages. Because compensatory damages remained at issue both in the Supreme Court and on remand, there is no question that the case presented a live controversy. 435 U.S. at 266-67, 98 S.Ct. 1042. In Memphis Community School, the trial court awarded compensatory damages, but on appeal the Court found that the plaintiff was entitled only to nominal damages. The cases contain no suggestion that the presence of a claim for nominal damages would prevent a case from becoming moot, because in both cases, the plaintiffs' entitlement to compensatory damages was a live issue at each stage of the litigation.
Arizonans for Official English is the only case in which the Supreme Court has discussed the relation between mootness
The Supreme Court has held that nominal damages can suffice to make the plaintiff a "prevailing party" for purposes of entitlement to attorneys fees. Farrar v. Hobby, 506 U.S. at 115, 113 S.Ct. 566; Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). That is not inconsistent with the proposition that a claim for nominal damages can become moot. It stands only for the proposition that where nominal damages are properly awarded in a case within the court's Article III jurisdiction, the plaintiff has "prevailed" within the meaning of 42 U.S.C. § 1988.
This Court has twice squarely held that a claim for nominal damages precludes dismissal for mootness. In Committee for the First Amendment v. Campbell, 962 F.2d 1517 (10th Cir.1992), a university student group challenged the decision of university officials to bar exhibition of a controversial film — The Last Temptation of Christ — but before the district court rendered a decision, the officials rescinded the order and the film was shown; subsequently the University adopted a new policy that comported with the First Amendment. The students persisted in the litigation, seeking declaratory and injunctive relief, as well as monetary damages. This Court held that the student's claim for injunctive relief was moot, both with respect to the specific film (which was advertised and shown on the dates it was originally scheduled) and with respect to university policy (which had been amended to eliminate the claimed constitutional defect). Id. at 1524-26. The Court held, however, that the students' claim for nominal damages was not moot. The Court analyzed the question as follows:
As explained above, I believe this analysis is inconsistent with principles of justiciability. The reason compensatory damage claims do not become moot is that, if awarded, they have real legal effect: the plaintiff is made whole and the defendant pays the costs of its misconduct. Nominal damages, by contrast, are "damages in name only." 1 Dobbs, supra, at 294. They have only declaratory effect and do not otherwise alter the legal rights or obligations of the parties. As such, they can
None of the cases cited by the Court in Committee for the First Amendment suggested that nominal damages claims are immune from dismissal for mootness. In all of them, the plaintiffs sued for compensatory damages, reinstatement, or other forms of effectual relief for alleged past misdeeds, in addition to nominal damages. In Carey, as already explained, a live claim for compensatory damages was at issue at every stage of the litigation. In Fyfe, the court concluded that the plaintiff, who had lost on the merits in district court, had proven a constitutional violation and was entitled at least to nominal damages; the appellate court remanded for consideration of other remedies, including reinstatement. 902 F.2d at 406. In Familias Unidas, the court affirmed the district court's conclusion that the plaintiff, though correct on the merits, had "failed to prove any actual, compensable injury." 619 F.2d at 402. The court held that the proper remedy was a declaratory judgment and nominal damages. Id. Each of these cases, therefore, was a live controversy over compensatory damages and other forms of concrete relief. In none of these cases did the plaintiff go to court on a bare claim for nominal damages.
In O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir.1990), commercial movie theaters sued for declaratory and injunctive relief against the enforcement of a municipal entertainment licensing ordinance, and for damages for past enforcement actions. During the pendency of the lawsuit, the City repealed the challenged ordinance. The plaintiffs conceded their claims for injunctive and declaratory relief were therefore moot, and at trial they withdrew their claims for damages except nominal damages. Id. at 1215. This Court held that "Plaintiffs' withdrawal of claims coupled with the failure of their proof did not moot their claim for nominal damages." Id. In explanation, the Court relied on the unexceptional proposition that "`by definition claims for past damages cannot be deemed moot.'" Id.,quoting Taxpayers for Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1479 (10th Cir.1984). The Court then stated:
Again, for reasons already explained, I do not think this reasoning is in conformity with constitutional requirements regarding justiciability. The reason compensatory damages (the remedy sought in Taxpayers for Animas-La Plata Referendum) do not become moot is that they constitute effectual relief for the plaintiff's past losses. Nominal damages are more akin to declaratory relief, and should be subject to the same justiciability principles.
Outside of this Circuit, the cases are mixed. The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable. See e.g., Murray v. Bd. of Trustees, Univ. of Louisville, 659 F.2d 77, 79 (6th Cir.1981); Yniguez v. Arizona, 975 F.2d 646, 647 (9th Cir.1992). Second Circuit panels appear to have taken inconsistent positions on the issue. Compare Hernandez
I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide.
In his concurring opinion, Judge Henry rightly asks what effect a ruling that nominal damages claims can become moot would have on the availability of attorneys fees under 42 U.S.C. § 1988, and hence on the incentives for civil rights plaintiffs to bring lawsuits challenging unconstitutional state action. Indeed, the most likely reason why a plaintiff would continue to pursue litigation, despite the cost, when a favorable judgment would have no practical effect, is the possibility of obtaining fees.
In Farrar, the Supreme Court held that a § 1983 plaintiff who seeks compensatory damages but receives only nominal damages is a "prevailing party" for purposes of attorneys fees under 42 U.S.C. § 1988 — though it also held that in such a case "the only reasonable fee is usually no fee at all." 506 U.S. at 115, 113 S.Ct. 566. Presumably, a plaintiff who seeks only nominal damages, and prevails on the claim, would also be a "prevailing party." The entitlement of such a party to attorneys fees would be determined according to the factors set forth by Justice O'Connor in her concurrence in Farrar, 506 U.S. at 121-22, 113 S.Ct. 566, and adopted by this Circuit in the context of declaratory relief in Phelps v. Hamilton, 120 F.3d 1126, 1131-32 (10th Cir.1997).
But the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citation omitted); see also Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1183 (10th Cir.2000) (citations omitted). If a case becomes moot during the course of litigation, "the expiration of the underlying cause of action does not moot a controversy over attorney's fees already incurred," but at the same time, a live claim for attorneys fees does not prevent the case from becoming moot. Dahlem v. Bd. of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1511 (10th Cir.1990).
The as-applied claim in this case became moot when the City acted on UARC's permit application, and the facial claim became moot no later than when the City amended the Ordinance. Both events occurred before the district court rendered
As to legal work performed before the case became moot, it would have been arguable, prior to Buckhannon, that this work was eligible for attorneys fees on the theory that it was the "catalyst" for Salt Lake City's decision to amend the Ordinance. In Buckhannon, however, the Supreme Court held that plaintiffs are not entitled to attorneys fees under § 1988, even if their legal efforts induced the defendant to change its prior unconstitutional practices, unless the litigation resulted in some form of judicial relief. 532 U.S. at 603, 121 S.Ct. 1835. Whether one agrees with the result in Buckhannon as a matter of policy (Congress is free to change the result by amending § 1988), the availability of attorneys fees should depend on the actual consequences of the litigation, and not on whether the plaintiff used the label "nominal damages" in its prayer for relief.
One of the perverse consequences of treating nominal damages as an exception to ordinary mootness principles is that it would create an incentive for plaintiffs in cases covered by fee-shifting statutes to continue to run up legal bills even after the underlying dispute no longer presents any justiciable legal controversy. Section 1988 was enacted by Congress to encourage civil rights plaintiffs to undertake private enforcement, S.Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908. 5910, but there is no public interest in prolonging litigation after it ceases to serve any practical purpose. See Farrar, 506 U.S. at 121-22, 113 S.Ct. 566 (O'Connor, J., concurring), cited in Phelps, 120 F.3d at 1131-32 (basing the availability of attorneys fees in cases of nominal damages or declaratory relief, in part, on "whether the judgment vindicates important rights and deters future lawless conduct as opposed to merely `occupying the time and energy of counsel, court, and client.'"). If a claim for nominal damages cannot become moot, and is eligible for fees under § 1988 (albeit subject to the Farrar factors), plaintiffs may be induced to waste legal and judicial resources by continuing litigation when there is no longer any point to it. If the concern is how a plaintiff could ever get a recalcitrant defendant to change its conduct without the expenditure of precious resources for legal representation, the answer is to amend § 1988 to authorize fees for "catalyst" actions, not to allow plaintiffs to continue to litigate otherwise moot legal claims merely because they have alleged nominal damages.
Committee for the First Amendment and O'Connor are squarely on point, and thus govern disposition of this case by the panel. I do not believe, however, that their holding is consistent with general principles of justiciability. Nor is the matter
HENRY, J., concurring.
I fully concur in the reasoning of the majority opinion, which I join. I write separately because of my concern that the coroner's verdict in my colleague's concurrence to his majority opinion may, like the famed rumors of Twain's demise, be somewhat "exaggerated."
It may in fact be true, that the Munchkin coroner would determine that the Wicked Witch of the East was most sincerely moot. However, Dorothy's case or controversy was certainly not "really most sincerely moot." There were other disputes still alive: Wiccanal interference with First Amendment rights had not been eliminated, illegal activity was capable of repetition and potentially evading review, and collateral consequences included that matter of not only nominal, but eventually liquidated damages.
Nominal damages live in Oz, in this and other circuits, and in numerous state courts, and they often serve a vital purpose. My colleague's concurrence's major contribution, I believe, is to suggest the vigorous application of court discretion with respect to attorney fees when nominal damages do not vindicate constitutional values.
Judge McConnell questions our circuit precedent, and that of several other circuits and many state courts, which allows a claim for nominal damages to keep an otherwise moot case alive. But a legal principle exists for a reason, and often, as Justice Holmes famously noted, for experiential reasons rather than logical ones. I believe, as stated, that my colleague makes an important contribution that might call forth some academic discussion about these issues. However, I believe the best response to his concern is to use the tools we now have to rein in excessive attorney fees and thereby reduce litigation commenced only for that purpose. We should be careful before we abandon the long-held view that nominal damages may keep a constitutional case alive.
Mootness and standing jurisprudence are certainly confusing. See Erwin Chemerinsky, A Unified Approach to Justiciability, 22 CONN. L.REV. 677 (1990) ("The entire area of justiciability is a morass that confuses more than it clarifies."). Professor Chemerinsky, Judge McConnell, and I agree that the essential question is "whether granting a present determination of the issues offered ... will have some effect in the real world." Concurrence at 5 (McConnell, J.) (quoting Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000) (internal quotation marks omitted)); see Chemerinsky, supra, at 697 ("If a federal court ruling in favor of the plaintiff would have no effect-if the world will remain the same-then the court likely is wasting its time and is just rendering an advisory opinion."). Where we seem to differ is as to the importance, as Justice Powell puts it, of the "scrupulous observ[ation]" of certain absolute rights. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).
As my colleague notes in section II of his concurrence, the fact that damages are nominal does not mean they may not be important. See Farrar v. Hobby, 506 U.S. 103, 121, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (O'Connor, J., concurring) ("Nominal relief does not necessarily a nominal
However, the cases clearly do not say that nominal damages do not provide justiciability. In Carey, two elementary and secondary school students in Illinois had been suspended from school for twenty days without being provided appropriate procedural due process. The Supreme Court ruled that in the absence of proof of actual injury, students whose procedural rights were violated, but whose suspensions were justified on the facts, are entitled to recover only nominal damages "not to exceed one dollar." 435 U.S. at 266-67, 98 S.Ct. 1042. In so doing, the Court noted the common law foundation for granting nominal damages in certain cases:
Id. at 266, 98 S.Ct. 1042. The Court thus remanded the case for determination of those nominal damages — that is, to determine whether the right that must "be scrupulously observed" has been violated, and what sort of nominal damages ("not to exceed one dollar," id. at 267, 98 S.Ct. 1042, but certainly an important dollar) should be awarded. That the Court held that "the denial of procedural due process should be actionable for nominal damages without proof of actual injury," id. at 267, 98 S.Ct. 1042, only underscores the argument that the denial of a substantive constitutional right is indisputably actionable for nominal damages.
Judge McConnell concludes that Carey and Memphis give rise to the argument that there can be no mootness in constitutional cases, and that it is difficult to imagine a case in which a plaintiff could not insulate the case from mootness by appending a claim for nominal damages. But this is what these cases (each authored by the distinguished and highly regarded Justice Powell) hold — with no dissent in either case. The Tenth Circuit does not stand alone in its reading of these cases and the policies behind them.
Of course, there can still be moot cases in constitutional matters. For example, when the cause of action does not survive (privacy claims, defamation), a plaintiff's death would moot the case. A defendant could also simply pay the nominal damages, thereby mooting the case (and rely on this circuit's adoption of Justice O'Connor's factors to evaluate attorney fees from Farrar, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494, to defend against attorney fee claims).
The very issue before us provides a case in point. Although we have disagreed with the district court's view of standing, we have determined, as the district court did, that the same claims were moot and that, on the merits, the plaintiffs are not entitled to nominal damages (despite the fact that with more clear and artful lawyering a
Finally, although a plaintiff may seek to keep a case alive by manufacturing a claim of nominal damages, there is little incentive to do so. A truly nominal victory, after Farrar and our court's adoption of Justice O'Connor's Farrar factors, will result in no fee. A plaintiff who manufactures such a claim will simply be creating more expense for itself.
I differ slightly with my distinguished colleague as well on his reading of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), and Farrar. Contrary to Judge McConnell's view, it seems that the Supreme Court has stated, or at least come very close to stating, that nominal damages do prevent mootness. See Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835 (noting that, under the FHAA and the ADA, there must be a "judicially sanctioned change" in the parties' legal relationship before a party is entitled to an award of attorneys' fees, and that "[w]e have held that even an award of nominal damages suffices under this test"); Farrar, 506 U.S. at 115, 113 S.Ct. 566 ("As we have held, a nominal damages award does render a plaintiff a prevailing party by allowing him to vindicate his `absolute' right to procedural due process through enforcement of a judgment against the defendant."); see also City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) ("Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms."); Carey, 435 U.S. at 266, 98 S.Ct. 1042. Thus an award of nominal damages is a judicially sanctioned change in the parties' legal relationship. See also Michael Ashton, Note, Recovering Attorneys' Fees with the Voluntary Cessation Exception to Mootness Doctrine after Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 2002 WISC. L.REV. 965, 979 (2002) ("Even a claim for nominal damages prevents the case from becoming moot.").
Further, this holding is not necessarily problematic when coupled with other jurisprudence, as the Note cited above indicates. Id. (noting that although a claim for nominal damages prevents mootness, "the plaintiff might recover little if any attorneys' fees upon winning only nominal damages."). As stated above, Justice O'Connor's Farrar factors for determining whether fees are justified have been adopted in this circuit. Farrar, 506 U.S. at 120-22, 113 S.Ct. 566 (O'Connor, J., concurring) (outlining factors as (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose served by the litigation); see Phelps v. Hamilton, 120 F.3d 1126, 1130 (10th Cir.1987) (adopting Justice O'Connor's factors). In Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1232 (10th Cir.2001), we applied the Farrar factors and noted some courts have concluded that "a public goal is accomplished if the plaintiff's victory encourages attorneys to represent civil rights litigants, affirms an important right, puts the defendant on notice that it needs to improve, and/or provokes a change in the defendant's conduct." We have ample guidance as to how to assess the validity of an attorney fee claim. See id.; Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir.1994) (applying the three O'Connor Farrar factors); Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993) (same). The factors do assist a district court, which has discretion anyway, in determining whether plaintiffs should receive fees. And wouldbe
Judge McConnell suggests that the quoted language from Farrar and Buckhannon is of limited application: "where nominal damages are properly awarded in a case within the court's Article III jurisdiction, the plaintiff has "`prevailed'" within the meaning of 42 U.S.C. § 1988." Concurrence, at 12 (McConnell, J.). I don't read the language quite so narrowly. If the case were moot under Buckhannon, obviously no fees could be awarded. The language must mean that if a plaintiff seeks to vindicate her absolute right through a nominal damages award, then we still have a case or controversy, and there are no prudential reasons to avoid hearing the case.
In conclusion, I believe that the Supreme Court has directly and indirectly indicated that a claim for nominal damages in a constitutional case may vindicate rights that should be scrupulously observed, and hence, such a case is not, nor should it be, moot. Our society still recognizes that constitutional rights may have to be declared, even if they do not give rise to easily calculated damages.
Further, I believe that our evolving jurisprudence in attorney fee matters gives a disincentive to plaintiffs proceeding with cases where no real damage exists, or where a victory will be so nominal as to result in a nominal attorney fee. I imagine the plaintiff in this case understands what I mean.
Code § 3.50.200.