Client Alert: Are the Federal Courts Now Open to Those Seeking Advisory Opinions?

By: Steven D. Hall

Earlier this month, the U.S. Supreme Court issued its ruling in Uzuegbunam v. Preczewski (No. 19-968, Mar. 8, 2021) and held that a student’s claim for nominal damages will sustain a cause of action against a school that would otherwise have to be dismissed as being moot. Mootness simply requires that a court be confronted with a real dispute if it is going to decide it. If a dispute ends while a lawsuit remains ongoing, mootness requires the court to dismiss the lawsuit because there is nothing left to decide.

By all appearances, the student’s claim in Uzueghunam appeared that there was nothing left to decide. This was so because the student had already “won” by forcing the school to abandon its “free speech” policies that the school had alleged that the student had violated when he attempted to share his evangelical religious beliefs on campus. In his lawsuit, the student charged that he was injured (his First Amendment rights were violated) by the school (for enforcing its “free speech” policies).  In response to the student’s lawsuit, the school abandoned those “free speech” policies that the student challenged, and then moved to dismiss the student’s lawsuit on the basis of it now being moot. The school argued that there was nothing left to the court to decide. The student disagreed and pointed to his claim of nominal damages. Because the student alleged no compensatory or actual damages for injuries that were caused by the school, the district court (and then the court of appeal) agreed with the school and ruled that the student’s lawsuit was moot and dismissed his lawsuit. The lower courts concluded that the student’s claim of nominal damages was not enough to save his claims from mootness. The Supreme Court disagreed, ruling 8 to 1 in favor the student.

In reversing the lower courts, the Court ruled that when a plaintiff sues over a completed injury that is traceable to the defendant, nominal damages are sufficient damages to save a claim from becoming moot and being dismissed. The Court’s reasoning distinguished between standing and mootness, and limited its ruling to mootness. The Court characterized standing as the threshold inquiry that is performed when a case is first filed, and it requires three allegations: an actual injury suffered by a plaintiff, an injury that is caused by the defendant, and a remedy that can redress that injury. Mootness, on the other hand, is an ongoing inquiry as a case progresses that requires those three requirements stay in place during the pendency of a lawsuit. In Uzuegbunam, the first two elements were not in dispute. Plaintiff had suffered an injury in being prevented from speaking, and that injury was caused by the school’s enforcement of its policies. At issue was whether a possible award of nominal damages was a sufficient remedy to redress the injury to allow the federal court to retain jurisdiction over the lawsuit.

As stated, mootness prevents a federal court from hearing a case after it is determined that the court can provide no effectual relief to the plaintiff. Here, the school did on its own accord what the plaintiff sought: rescinding the policies that prevented the plaintiff from speaking. With those policies no longer in effect, the question was what was left for a court to do in redressing plaintiff’s injury. Often, the answer is a claim for compensatory damages, but here there was no such damage claim. Instead, plaintiff only pled nominal damage, which, in the view of the dissenting opinion (Chief Justice Roberts) offered plaintiff nothing more than a prospective ruling that he was right and the school defendant was wrong. This is tantamount to an advisory opinion, and advisory opinions cannot be issued by the federal court due to the Constitution’s requirement that the federal court only have subject matter jurisdiction over actual “cases and controversies”. The majority opinion reasoned that the dissent’s fear over an allowance for advisory opinions was unfounded because English and American courts have historically awarded nominal damages where a defendant violated the plaintiff’s rights even if the plaintiff did not have a claim for actual damages. As seen by the majority, the requirement that there both be an injury and that this injury was caused by defendant was enough to keep the case or controversy sufficiently alive in order for the court to retain jurisdiction. In the eyes of the dissenting opinion, this opinion opens the way for federal court to issue advisory opinions “whenever a plaintiff tacks on a request for a dollar.” Mickes O’Toole will continue to monitor developments on this issue, and we will update you as the lower courts put this ruling into practice.

Further questions may be directed to Mickes O’Toole on this and related subjects.

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