Courthouse Steps Decision Teleforum: Uzuegbunam v. Preczewski

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On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion. 

John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more. 

Featuring: 

John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom

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This Teleforum is open to the public and press. Dial 888-752-3232 to access the call. 

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Decision Teleforum on Uzuegbunam v. Preczewski. My name is Micah Wallen and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us John Bursch, who is Senior Counsel and Vice President of Appellate Advocacy at the Alliance Defending Freedom. After Mr. Bursch gives his opening remarks, we will then open up the floor for a live audience Q&A. Thank you for sharing with us today. And John, the floor is yours.

 

John Bursch:  Thank you. Happy to be here especially because I served as counsel to the petitioners, Mr. Uzuegbunam and Mr. Bradford, played a substantial role in the briefing and helped prepare my colleague, Christian Wagner, who presented the oral argument at the Court in January.

 

      The issue in this case is whether, for purposes of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right. And the Court answered that question, yes they are, resolving a circuit split and allowing this particular case to go forward. I'm going to go back to the beginning and talk just a little bit about the background of the case. Because it didn't start as a nominal damages case. It started as a free speech case.

 

      Chike Uzuegbunam was a student at Georgia Gwinnett College, a public college in the State of Georgia, and he wanted to share his faith on campus. And so he found a public place and started speaking to passers-by about his faith in Jesus Christ and eternal salvation.

 

      But he was quickly stopped by university officials who informed him that students could only publicly express thoughts on any message in speech zones that the university maintained and enforced. And those speech zones were microscopic. They made up only .0015 percent of the campus footprint. If you wanted to imagine the campus being the size of a football field, the free speech zones were about the size of an eight-and-a-half by eleven piece of paper, so quite small.

 

      They were only open for limited hours per week. You had to get an advanced reservation in order to use them. And once you had spoken in one of these free expression zones, you couldn't use it again for 30 days. It was a pretty outrageous policy. But Mr. Uzuegbunam was not deterred. He went and got the appropriate approvals and got his reservation. He even got the literature approved that he wanted to hand out. And he went to the speech zone and was speaking at the appropriate time in the appropriate place, again sharing his message of faith. And he was stopped by university police a second time.

 

      He showed them his reservation. He explained that he was in the right spot. He had been approved. He wanted to know what was wrong. Well, it turned out that the campus also had a Heckler's Veto policy that if anybody's public speech made someone else feel uncomfortable, that that was grounds for prosecuting that speaker for disorderly conduct. And that brought a quick end to the speech.

 

      Chike inquired of the officers what he needed to do to be able to speak. They suggested that maybe he could change the way that he was expressing his message. And they sent him back to the campus office, and they basically told him the same thing. Told him that he wouldn't be able to share his faith on a public speaking basis. And that forced him to file a lawsuit to try to change the policy.

 

      Well, when the lawsuit was filed, you would have thought that the officials would immediately see the error of their ways and change course. In fact, Alliance Defending Freedom, my employer and the public interest law firm that represented the petitioners had sent a letter to this college three years earlier, explaining that the free speech policy that they had was blatantly unconstitutional. But instead, they took a different tact. They said that when Chike was sharing his faith, that was akin to fighting words, which are unprotected under the First Amendment.

 

      After realizing that that wasn't going to go anywhere, they changed course again, and they decided to eliminate the policy, which they did. And then they moved to have the case dismissed as moot. Well, the court sat on that motion for quite some time. And there were actually two plaintiffs to the lawsuit. Mr. Uzuegbunam, who I spent a lot of time talking about. But also a friend of his, a fellow student, Joseph Bradford, who also wanted to share his faith on campus, but self-censored because he had seen what had happened to Chike and didn't want to get in trouble with university officials.

 

      The district court granted the motion to dismiss, with respect to both students. They no longer had a claim for declaratory and injunctive relief against the policy because that policy was gone. They didn't plead any compensatory damages because they really didn't have any. All they had was the nominal damages claim. And the court said that that was insufficient to maintain Article III jurisdiction over the case. The fact that Chike had now graduated and that Joseph had only the nominal damages claim meant that there was nothing else that the district court could do. Nothing that it could do to remedy this past violation of a constitutional right.

 

      Well, to Chike and Joseph, that felt like someone was telling them that the violation of their constitutional rights didn't matter. And they immediately appreciated that this meant there would be no consequences for the college officials who engaged in this unlawful conduct and nothing to lock in the fact that the policy that they had was unconstitutional, so they couldn't revert to that in the future.

 

      So they appealed, and the Eleventh Circuit affirmed the district court ruling. And that created a significant circuit split. In virtually every other circuit, courts had held that nominal damages are sufficient to provide redress in a concrete way such that they established continuing Article III jurisdiction, even after claims for injunctive relief become moot. And that's the basis that the Supreme Court took the case.

 

      The Supreme Court disposed of this one pretty quickly. As I mentioned, the argument took place in January. And the decision came out this past Monday, March 8th. And the Court held that, indeed, nominal damages do redress past injuries and therefore are sufficient to establish jurisdiction. So I'll walk quickly through the opinion and then be happy to take any questions about it.

 

      Justice Thomas writing for the eight-justice majority starts with the basics of Article III standing. You need to have an injury in fact that is fairly traceable to the challenged conduct and seeking a remedy that is likely to redress that injury.

 

      Now, there was no dispute among the parties that there was an injury in fact. Chike's constitutional rights had been violated, at least that was the allegation. They were fairly traceable to the challenged conduct of these officials. The question was whether nominal damages provided a remedy that was likely to redress that injury.

 

      So to determine that question, the Court looked at the common law. Article III's restriction of the judicial power to cases and controversies, the Supreme Court has frequently said, means those types of cases and controversies that were traditionally amenable to and resolved by the judicial process at the common law.

 

      Now everybody agreed that nominal damages historically could provide prospective relief. Long before there was Declaratory Judgment Act, it was not uncommon that litigants and courts used nominal damages claims so that they could announce declaratory relief, prospective relief. The nub here was whether, at common law, nominal damages standing on their own could also provide retrospective relief. And it was the position of the Georgia Gwinnett officials that nominal damages, by themselves, can redress only continuing or threatened injury, but not past injury.

 

      So continuing injury would be obvious, something that is continuing to happen. Threatened injury would -- might be in a case where, say you had a property rights dispute, and it wasn't clear once there has been a trespass what the property line was going to be. And so you needed some kind of a declaration from the court based on nominal damages as the redress that would establish that property line, so that going forward in the future, the neighbors would know exactly where that line was.

 

      Well, Justice Thomas explained that the common law actually painted a very different picture. That courts frequently allowed nominal damages awards, not only for continuing or threatened injury, but also for past completed injury. And in fact, that approach was followed by common law cases both before and after ratification of the United States Constitution. And he started with the English common law. And then worked his way forward to American law. And just had a wealth of cases that proved that point.

 

      Justice Thomas pointed out that a contrary rule, the one that the college officials were advocating for, would mean that in many cases, there was no remedy. Because there are some injuries, such as the violation of due process, or of voting rights, that aren't readily reducible to monetary damages. And he relied on the Supreme Court's decision in Carey v. Piphus for the proposition that nominal damages were an appropriate redress for a violation of procedural due process.

 

      And in fact, there had been a number of amici briefs that made this same point, whether it's in the speech context, or the free exercise context, it's frequently the case that compensatory damages either aren't available because there is no economic injury. Or they are difficult to prove. Or it may be a situation where the plaintiff chooses not to prove their economic injury.

 

      And at oral argument, Justice Kagan had mentioned a case where that was true. It involved a pop singer who had suffered a sexual assault. And when she sued, she didn't ask for economic damages, although she certainly could have in that case. She only asked for nominal damages of $1. Because she wanted to have the judgement against the individual to prove that this has happened -- had happened, and that there was a consequence that, for all time, would be there for all to see.

 

      But at the same time, she wasn't interested in trying to prove up what those economic damages might be. And you can imagine that situation playing itself, for example, in jails where you have prisoners who might be denied religious meals, or the opportunity to worship. Certainly in speech context like this one, where economic damages are difficult to prove, or simply not desired by the plaintiff.

 

      So the college officials took a second tact, and they said, all right, well. if you disagree with us about the notion that nominal damage can be awarded for past completed injuries, if you look at the common law cases, they're typically only awarded when a plaintiff also pleaded compensatory damages but then failed to prevail on the compensatory damages. And then nominal damages were kind of a backup. And Justice Thomas disposed of that pretty quickly as well.

 

      He said that the cases, themselves, show that they did not require a plea for compensatory damages as a condition for receiving nominal damages. It doesn't have to be a ride-along. What's more, he said, nominal damages are not a consolation prize for the plaintiff who pleads but fails to prove compensatory damages. They're instead damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages.

 

      And statutory damages, including punitive damage awards were something that were discussed at great length during the oral argument because those also, sometimes, lack a compensatory function and yet, the courts have always held that they provide a concrete remedy that redresses a constitutional violation.

 

      Justice Thomas also pointed out that you need to show Article III jurisdiction over every claim at every stage of the case. And so the fact that your compensatory damages claim gave the court jurisdiction at the beginning doesn't relieve you of the burden of proving that the nominal damages theory would also create Article III jurisdiction. Otherwise, it should be dismissed from the get-go. And traditionally courts simply haven't done that. That's because they recognized, including the U.S. Supreme Court in Farrar v. Hobby and other cases, that even a single dollar, while it doesn't provide full redress, here it didn't fully redress the harm that was done to Chike, but it does effectuate a partial remedy in a concrete way that satisfies the redressability requirement.

 

      The last thing that Justice Thomas pointed out was that if the college officials were correct, then it would place a higher value on Article III than a dollar. Basically saying that, it's just simply not enough. That's not true in the compensatory damages context, of course. If you sue for $1 compensatory damages, the Supreme Court has frequently acknowledged that's sufficient redressability to invoke Article III jurisdiction.

 

      But Justice Thomas also pointed out that Congress had abolished the amounting controversy requirement for federal question jurisdiction in 1980. And so the college officials claim that $1 just wasn’t enough and would violate that amendment to the jurisdictional statute, as well.

 

      Now the Court did emphasize that their holding concerns only redressability. It's always up to the plaintiff, of course, to establish the other elements of standing, particularly a particularized injury. So for example, with respect to the other plaintiff and petitioner here, Joseph Bradford, who was not actually stopped from speaking but merely self-censored his speech because he was afraid of being punished if he engaged in it, the district court would have to determine, in the first instance, whether that was a violation of his constitutional right. And lower courts do that all the time in pre-enforcement actions and the like.

 

      So in conclusion, they reversed and remanded the case for further proceedings, holding that nominal damages can redress Chike's injury, even if he cannot or chooses not to quantify that harm in economic terms.

 

      Now there was a short one-paragraph concurrence from Justice Kavanaugh who agreed with the Chief Justice dissent, and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and end the litigation without a resolution of the merits. That's a hotly contested question that the Supreme Court considered but did not resolve in a previous case. And that will continue to be one going forward.

 

      As for Chief Justice Roberts, he was the sole dissenter. And as a number of media outlets have noted, this is the first time, on a merits case, that the Chief has filed a solo dissent since he's been on the U.S. Supreme Court bench.

 

      His position was that the Court's opinion was turning the federal courts into advice columnists. Because when all you have is nominal damages, there's really nothing that the parties are still fighting about. He says an award of nominal damages does not alleviate the harm suffered by a plaintiff, and it's not intended to.

 

      Well, there's a simple hypothetical, I think, that demonstrates why that's wrong. Wholly aside from the hundreds of years of common law that Justice Thomas pointed to. Think about someone who's engaged in public speech on a college campus and then they're shut down by campus officials. And this student, unlike Chike, is engaging in their message using sidewalk chalk as opposed to just speaking out loud. Then a professor comes along and they erase the sidewalk chalk and their message is killed, as well.

 

      So that plaintiff would be able to go forward claiming the almost infinitesimal value, maybe a penny or less than a penny of the value of the consumed chalk. And everyone would recognize that that's compensatory damage that getting that penny would redress that plaintiff and therefore, they're in Article III jurisdiction.

 

      Well, it's really no different when you're talking about someone like Chike, who's not using chalk but is merely speaking. There is some concrete injury from having lost his speech. You just can't monetize it in a way that a jury is going to be able to do with any kind of specificity. And just as the one penny to replace the chalk didn't actually redress in full the first student, because after all, they lost their ability to communicate their message to their peers on campus at that particular time at that particular place in a way that it can never come back again, so, too, did Chike lose his speech, and that $1 -- or nominal damages can be $10, it could be $100.The $1 isn't important. But whatever that nominal amount is does give him some redress.

 

      Does it make him whole? No, just like the penny doesn't make the other student whole. But it does give him partial relief and that really should be enough. And that's the message of the common law cases that Justice Thomas refers to. And really is the principal that drives the result in this case.

 

      Now will this result in the federal courts being flooded with all kinds of moot cases where (inaudible 00:17:28) attorneys are now simply appending nominal damages claims, I think not. In eight circuits, this was already the rule. All this was doing was bringing the Eleventh Circuit into conformance with the others. And even in the Eleventh Circuit, this was the first case where they had held that nominal damages were insufficient to preserve a case from mootness based on a past completed constitutional injury.

 

      So I think if there was going to be a flood of these cases, it would have already happened. There is no nose under -- camel's nose under the tent here. But what it does mean is that it will make sure that, going forward, anybody who claims a constitutional right, and either is facing difficulty proving economic loss or simply doesn't want to like the hypothetical -- or not the hypothetical, but the actual case that Justice Kagan mentioned during the oral argument, it makes it clear that they'll be able to go forward on their nominal damages claim.

 

      And then we can resolve at a future date whether that means they're entitled to a judgment on the merits or whether the defendant has, if they wish, some ability to get the case dismissed based on accepting a judgment against them in the amount of those nominal damages. Plus any attorney’s fees if they are appropriate.

 

      So at this point, I think I will stop my comments and open the floor for questions and answers. And I'm delighted to hear those.

 

Micah Wallen:  Absolutely. Thank you so much John for those opening remarks. No questions lighting up the queue right away. John, is there anything else you'd like to discuss about the case while we give a minute or two for questions to roll in?

 

John Bursch:  Well just to give a shout out to the students here for having the courage of their convictions. All of us can remember being college students and taking on administrative officials, whether it's a public college or a public university. It's kind of a scary prospect.

 

      This is a situation where Chike was stopped from speaking by the officials, not once but twice. And having understood that something terribly wrong had happened to him, that his constitutional rights have been violated, he actually went out, he contacted Alliance Defending Freedom and said that he wanted to do something about it. And then even after going through the discouragement of having the case dismissed based on this nominal damages theory that the college officials had come up with, he continued to press that all the way to the United States Supreme Court.

 

      And we hear about Supreme Court opinions so frequently, sometimes we forget about the litigants and who they are. And the courage it takes for them to step forward and do something that will result in a permanent change in the law that benefits everybody. And so I'm just so proud of Chike and Joseph for standing up for their rights here. This is going to make a difference for many, many people going forward.

 

Micah Wallen:  Absolutely. And we do have a question that lit up the queue, so we'll move to that caller.

 

Caller 1:  Thank you for this great presentation and thank you for your work on this case. The question I have is, when you brought the case originally, did you have a -- seek the remedy of declaratory relief, or declaratory judgment. And if so, what happened to that? And if not, why not?

 

John Bursch:  There was a claim for declaratory relief, and a request for preliminary injunction based on that declaratory count. But it was all based on the unconstitutional policy. What the plaintiffs were looking for was the declaration that these outrageous speech zones, and the reservation policy, and the heckler's veto, and all of it was unconstitutional. And that the officials should be enjoined from trying to enforce that policy against any other students going forward.

     

      The problem was that, after initially saying that sharing your faith is fighting words and therefore not protected by the First Amendment, the university officials did change their policy. And so that mooted the declaratory claim and it mooted the request for preliminary injunction relief.

 

      So those were no longer sufficient to continue carrying the case forward. And that's the point, then, where the college officials thought, okay game is over. We changed our policy. Without ever accepting any responsibility for having committed a past violation of constitutional rights. And so that's how we ended up in this fight over nominal damages and redressability.

 

Caller 1:  Thank you. I don't know if I still have the floor, but my follow up question would be, do you think that declaratory relief, as opposed to nominal damages, would have been enough if they had said, well, we're considering whether or not to withdraw this policy, or something along those lines. Would that have been enough for the redressability prong?

 

John Bursch:  Well, I think so. So long as the policy is still in place and it's capable of being enforced against someone else, there's been no permanent cessation. I think a declaratory count would always be sufficient to establish jurisdiction.

 

      There is this cessation concept that officials sometimes use when they simply say, well, we're not going to enforce the policy anymore, but we're not going to take it off the books. And then the Court has to decide, well, is it possible that it could still be enforced in the future. And the answer is typically, well, yes it could be.

 

      But here, just like the legislature that repeals an unconstitutional statute, the college officials did remove the unconstitutional policy hook, line, and sinker. And so that cessation doctrine wasn't going to be helpful to the plaintiffs. It was going to allow the college officials to skirt any responsibility for their past unconstitutional acts.

 

Micah Wallen:  All right, not seeing any other callers lighting up the queue, John, did you have any closing remarks for us today before we close up?

 

John Bursch:  I just wanted to thank everybody for tuning in and for those who are listening to the recorded podcast on a going-forward basis. Feel free to contact me at Alliance Defending Freedom at any time if you have further questions about the case. And if you're interested in the other cases that we have defending free speech and religious liberty and the right to life, you can find those at adflegal.org. Thank you very much.

 

Micah Wallen:  Absolutely. And on behalf of The Federalist Society, I'd like to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.